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Research On The Application Of The Right To Silence System In My Country

Posted on:2022-10-16Degree:MasterType:Thesis
Country:ChinaCandidate:G LinFull Text:PDF
GTID:2516306554974059Subject:Criminal Law
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The system of the right to silence highlights the idea of human rights.Many countries in the world have the relevant provisions of the right to silence,but the law of our country has not yet stipulated the system of the right to silence.With the development of the rule of law in China,it is imperative to establish the right to silence system.However,we should also pay attention to the issue of South Orange and North orange in the construction of the right to silence system,abandon the past "taking doctrine",start from China's reality,absorb the core essence of the right to silence,and build a practical and feasible system in line with China's reality,so as to better fit China's judicial practice.The article is divided into four parts.The first part introduces the concept,origin and development of the right to silence,and expounds that the system of the right to silence can effectively protect the basic rights and interests of criminal defendants,maintain judicial justice and improve judicial efficiency.The second part studies the development process of the right to silence and summarizes its experience and lessons by examining the system of the right to silence outside the country.It holds that the restriction of the right to silence in foreign countries does not mean the total negation of the right to silence.If we want to establish the system of the right to silence,we should not act too hastily,but take a step-by-step approach.The third part first discusses the impact of the establishment of the right to silence in China through positive and negative aspects.The positive influence is to highlight the independent value of the procedure,effectively curb extorting confessions by torture,effectively balance the power of the prosecution and the defense in the litigation,and strengthen the defense of the defendant in criminal proceedings.At the same time,the negative impact is that the establishment of the right to silence system is not conducive to the fight against crime,and it will also bring impact on the use of oral evidence.Secondly,it discusses the preliminary conditions for the establishment of the right of silence in China.The last part discusses how to establish the right to silence system in China.First of all,we should follow the idea of coordinating freedom and order,protecting human rights and combating crime,justice and efficiency,and carrying out the presumption of innocence.Secondly,at the specific level,the right to silence should be explicitly stipulated in the Constitution and the criminal procedure law,and the right notification rules should be established from the three aspects of notification time,content and method.At the same time,it is necessary to limit the right to silence and make adverse inference on the silence behavior of the accused under specific circumstances.Special crimes should not give the criminal defendant the right to silence and other circumstances.It is necessary to establish a mechanism to encourage confession and give play to the role of the system of confession and leniency in order to alleviate the disadvantages brought by the right to silence.In order to ensure the smooth exercise of the right to silence,we need a practical security system to assist.
Keywords/Search Tags:Right of silence, Confession, leniency system of confession and punishment, procedural justice, Right notification rule
PDF Full Text Request
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