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On The Principle Of Privilege Against Self-incrimination And Its Realization

Posted on:2015-05-10Degree:MasterType:Thesis
Country:ChinaCandidate:S XuFull Text:PDF
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In today’s world, building and maintaining a harmonious society under the ruleof law and resolving the conflicts inside the law are the common pursuit of a modernstate of law. In the field of criminal procedure, the rule of law mainly lies in theextensive rights given and ensured to citizens, meanwhile the abuse of public poweris limited. How to effectively fight against crime under the protection of human rightsand reconcile their relationship have plagued lawmakers of criminal lawsuit,judicators and litigation academics. The establishment of the privilege againstself-incrimination is of great value to the balance between maintaining and ensuringhuman rights and fight against crime, and for this reason, this principle has becomean important legal principle.The principle of the privilege against self-incrimination appears in theprocedures exploration of Bri-Ame System countries in criminal justice practice. Atthe very beginning, the principle wasn’t considered as a litigious right which aims atbanning self-incrimination though compel method such as swear, torture, threaten andinducement toward government’s illegal means in obtaining information. With theimprovement of the privilege self-incrimination in American and some otherdeveloped countries, its definition has beyond its old version. No matter in Civil Lawcountries or in Bri-Ame System countries, the principle has achieved its recognitionand become one of the basic rules in criminal procedure among modern countriesruled by law, at the same time it has been promoted as one of the basic human rightsin international law. The Criminal Procedure Law has been revised in March14th2012, and the term of stop collecting evidence illegally like extorting confessions bytorturing, threatening, inducing and cheating, and stop compelling anyone toself-incrimination have been added to the No50lying as the general principle ofevidence collection. This action means that we have established the status of theprinciple of the privilege against self-incrimination in criminal procedure law for thefirst time. Comparing with western countries, we are late in researching the principle of theprivilege against self-incrimination and the theory are not mature enough since it is atransplanted law in our country. After the revision of Criminal Procedure Law in2012, a heated debate has been aroused between the filed of procedure law and themedia which attracts the public’s attention again. People are eager to find and createthe possibility of justice in national legal system, and it is the motivation to study law.Scholars in our country view differently on the related regulations of the principleafter the revising of the procedure law. Such as, whether it is limited to put the termof the privilege against self-incrimination in evidence collection; whether it iscontradictory between the expression of stop compelling anyone to self-incriminationand the term No108in Criminal Procedure Law the suspect should respond honestlyto the inquiry of investigators.Based on the focus of dispute, the author start from the definition of the principleof the privilege against self-incrimination, and then analyze its content deeply. Onthe basis of the comparison of the stipulated content in this principle betweenBri-Ame System Countries, the Civil Law Countries and our own country, theauthor makes a comparative study among the privilege against self-incrimination,silence right and the voluntary statement to explain respectively and to figure outdifference while seeking common ground. No relief, no right. The author starts fromthe comprehensive perspective of Criminal Procedure Law, attaches high value torights informing mechanism and the elimination of illegal evidence, and points outthe way to realize the principle of privilege against self-incrimination. Meanwhile,through analyzing the current situation of legislation and combining the juridicalpractice, the author deliberates the dispute carefully and makes comment one by one.The shortcomings of the principle in operation and the relevant improvementmeasures have been put forward by the author. A feasible analysis and system designhave been carried out which featured in establishing a criminal litigation system onthe basis of voluntary statement, and increasing the relief measures. The authorintends to settle the problems in legislation and juridical practice, to further realizethe principle of privilege against self-incrimination and to protect the human rights in criminal prosecution and the justice of procedure through perfecting the relatedregulations.
Keywords/Search Tags:The Principle of Privilege Against Self-incrimination, Rights InformingMechanism, The Elimination of Illegal Evidence, Human rights Protection
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