System Security Research On "the Privilege Against Self-incrimination"

In the modern country under the rule of law, the principles that nobody shall be compelled to be self-incrimination reflects basically that criminal suspect or defendant could really enjoy the right to defend.This principle is both an important content of the criminal justice system and an important expression of the concept of human rights in the field of criminal justice. Thus, this principle has gradually become an important standard to measure the extent of modern judicial civilization in a country. With the advanced conception of governing by law and democracy, the civilians require higher standards for the implementation of human rights and reform of judicial system. As a result, the lated modification of the Criminal Procedure Law which is considered as "Junior Constitution" after 16 years is treated as the milestone in the development of criminal system. To be specific, referring to the United Nation’s and other country’s rules relative to the principle of forbidding self-incrimination, the revised Criminal Procedure Law has added clearly that "the privilege against self-incrimination" in the Chaper of "evidence". These new rules shows that the Chinese government cherishes increasingly the just criminal procedure and protection for the basic procedural rights of criminal suspects and defendants, indicating that criminal system tends to be more democratic and civilized. Generally speaking, most countries have already reflected the spirit of this principle and made this principle important by defining it either in the constitution or in other laws. Balancing real justice and procedure justice, punishing crime and protecting human rights is the modern country under the rule of law has always been the pursuit of the highest goal. However, how the reach the solve the contradiction and conflicts among those four values to achieve the dynamic balance is the new subject faced by the legislation and legal practice.By introducing the frequent wrong judgement and containing extort confessions by torture, this dissertation would analyze definition of " the privilege against self-incrimination" and other related concepts and ascertain the relationship between the "rights of silence" and "obligation to answer". Besides, this dissertation would systematize " the privilege against self-incrimination" of common law and civil law, especially comparing the China law with American law to figure out the defects of China Law. In addition, this dissertation would focus on the establishment of "the privilege against self-incrimination", which could make this principle serve for increasing democracy in China. To realize it, the dissertation has considered the practice of revised rules, analyzed the implementable environment and obstacles for revised rules and refer to legislation cases of foreign countries. Moreover, the exception cases for "the privilege against self-incrimination" has been put forward appropriately, in order to reduce the negative influence that revised rules might bring in. To make a conclusion, the dissertation aims to research the principle of "nobody shall be compelled to be self-incrimination" from the perspective of theory and practice, stating the significance of containing extort confessions by torture, regulating the ways of getting evidence, balancing the strength of legislation parties. Finally, the conflicts between the criminal punishment and human rights protection and between real justice and procedure justice could be allied and reach a balance.