Research On The Privilege Against Self-incrimination In China’s Criminal Procedure Law

The privilege against self-incrimination is a principle of rule of law that the criminal suspect or defendant accused or witness such as object have the right to refuse to make a statement when are likely to cause its own subjected to criminal punishment.This principle is conducive to the integration of substantive fairness and procedural justice, the fight against crime and the protection of human rights and many other law demand, and becomes an important principle of criminal law and the spirit of the constitution, the accepted as a major international.At the same time, the principle has become the highlight an important symbol of dignity of personality right protection of a country’s level of criminal suspects, defendants and witnesses and other related personnel. At present, the principle is also clearly adopted by the guarantee of human rights treaty of the United Nations and other relevant international convention. In our case, the newly criminal procedure law revised in 2012 stipulates clearly that the fiftieth of the principles and provisions of the law, with respect to the second bar "and guaranteeing human rights" principle set off one another, made clear the enormous progress of criminal law in china.However, we should also see, the law for the provisions shall not be forced self-incrimination has all sorts of places not perfect, especially the lack of system and measure system of related, which are bound to restrict the principle role and function in practice.In view of this, this article has the comparative analysis on the legislative practice of Anglo American law system and continental law system countries, and focused on China, s current legislation shall not be forced self-incrimination, and on this basis, put forward the perfect shall not be in China, s criminal procedure law forced self-incrimination is a specific legal advice.In this paper, except the introduction and conclusion, is divided into four parts.The first part has an analysis on the concept of the privilege against self-incrimination.The principle is an international human rights norms that has born from the countries of Anglo American law system, extended to the continental law system, and flourished in the world.This principle is a privilege that anyone have the privilege to refused to provide the words and deeds that are all likely to cause itself into a conviction position by the judicial authorities forced situation.The characteristics of the principle are manifested as natural attribute of the subject, anti-compulsive behavior, the words and special material of the applicable evidence object.There is a close link between the principles and the right to silence, and there are remarkable differences between the principles and the right to silence,such as the legal status,the focus of protection,protection object class, the field of action, and so on.The second part:discusses the legitimacy foundation shall be forced self-incrimination.The protection of human rights theory is the main theoretical basis of the principle.The theory requires the law to give the accused fully dignity and freedom that decide whether to answer in accordance with their own internal will,and to bring about the real change as the lawsuit object and tool of destiny, which contain extorting a confession by torture and other human rights act of destruction.The procedural justice theory is another important theoretical basis of the principle.The theory requires a fair distribution of the burden of proof for both sides, and both sides realize the lawsuit balance of power, in order to curb judicial torture to extract confessions of savage behavior.The third part has the comparative analysis on the legislative practice of Anglo American law system and continental law system countries.The practice of law in the countries of Anglo American law system like Britain and America and the continental law countries such as Germany and Japan,were established in the privilege against self incrimination.The applicable scope of the principle of main body comprises both the criminal suspects, defendants, and witnesses.Relevant national legislation on the application of the principle provisions of the exception.This principle is not only applies to the trial stage, but also for the investigation stage and the stage of review and prosecution.The application of this principle is that the legal consequence of illegal words evidence be excluded.The valuable experiences is worth using for reference in our country’s Criminal Procedure LawThe fourth part reviews and puts forward some improvement suggestions to our country the privilege against self-incrimination legislation.The establishment of the privilege against self-incrimination in China’s Criminal Procedure Law has important significance,such as effectively restricting the extortion of confessions by torture, greatly enhancing authority of the justice department in the hearts and minds of the people,and significantly promoting the prosecution organ handling performance.There are many insufficient in the legislation for the privilege against self-incrimination in china,such as legal positioning is not high, the confession of conflict, the exclusionary rules of illegal evidence exclusion is not perfect, and the witness confession centered, lack of exceptions, and lack of the necessary supporting system and measures.We should improve the legislation of the privilege against self-incrimination in our country from the following aspects,such as the improvement of legal status of the principle, to make clear of the various specific forms of force, correct treatment of the principles truthfully answering the obligation relationship, establishing the rights of privilege against self-incrimination for witness, reasonable limit of the scope of application of the principle, the establishment of the specific operation mechanism of the principle, and improve the supporting mechanism of the principle.