The Study Of The Principle Of Privilege Against Self-incrimination In China

The article analyzes the theoretical foundation, the legislative history and the application in China of the principle of privilege against self-incrimination. By discussing the problems the write will propose measures to improve the application of the principle. The theoretical basis of the principle is to prevent the abuse of power, to clear the proof burden of the prosecution, to protect humans rights and dignity and the confessions obtained by coercion is unreliable.In ancient China, torture is legal. However, we pay more attention on humans rights in modern times. The principle of privilege against self-incrimination is set down in our legislation through a long history. The exclusionary rule of illegal evidence provides for the possibility of establishing the principle. The repeated torture and miscarriages of justice result in that people appeal to justice and humans rights which promote the establishment of the principle of privilege against self-incrimination in our legislation.There are special features in the application of the principle of privilege against self-incrimination.In theory, anyone can quote the principle.But in criminal proceeding, the suspect, defendant and witness is most likely to quote it. The object should include both statement and physical evidence which is against him. It applies to the whole process of criminal proceeding.In the background of China, the principle should be limited in the criminal proceeding The legal consequences of is to deny the ability of the evidence and to exclude it. Our legislation sets some systems and rules to ensure the realization of the principle, such as the exclusionary rule of illegal evidence, the rights to obtain the help from lawyer, the audio and video recording system.However, there are still some problems in the application of the principle in our country. There are conflicts between the obligation of true confessions and the principle. There are impactions of the exclusionary rule of illegal evidence, such as not excluded the evidence obtained by decoy and fraud, the restrictions on the judge found of coercion, the illegal physical evidence that excluded has harsh conditions, the overqualified of exclusionary rule of illegal evidence and so on. The lack of informed rights procedure can’t ensure that the suspect and defendant will know the rights. Moreover, it lacks of effective supervision mechanism, especially the investigation function of detention center.To solve these problems, the writer proposes some measures to improve. Firstly, it should turn the obligation into right of the true confessions so that the suspect and defendant can have the freedom to choice. He who gives true confessions should be given the appropriate incentives in the prosecution or in the trail. Secondly, it should improve the exclusionary rule of illegal evidence, giving the judge discretion to found the coercion. The physical evidence obtained by coercion should be excluded, unless that it can be proved that they are achieved through legitimate behavior The conditions of exclusionary rule of illegal evidence should be reduced. The procedure can star when the suspect and defendant give reasonable doubt before the trial. Thirdly, we should establish the mechanism of informed right, and the evidence obtained not informed should be excluded.Lastly, we should establish effective supervision mechanism,on the one side, the lawyer should be informed to the present and have valid statement,on the other side, the detention center should be independent and be canceled the investigation function. Then the detention center is responsible for the audio and video recording, and has the obligation to testify in the court for the illegal evidence exclusion. The application of the principle of privilege against self-incrimination should be combined with other rules and system. With continuous improvement and refinement, the principle will play more important role in the criminal proceeding.