The Analysis Of Feasibility Of Implementing Silence To Right In China

The Western Right of Silence is considered to be a natural right and the composition of human rights, which follows the principle as presumption of innocence. The right of silence refers to the right that in criminal litigations, the criminal suspects and defendants don't have to prove innocent and can keep silent when they are interrogated. It is stipulated as a legal right in many countries'criminal Procedure law, which can better protect human rights. With the amendment of our Constitution, in which covers respecting and protecting human rights for the first time, the Right of Silence should be bring into our criminal Procedure law. It is necessary to establish our own Right of Silence system with Chinese characteristics.This essay begins with the concept and historical transformation of the Right of Silence, and then I make studies on the necessity of its applying in China the problems that should be paid attention to in the process.This essay consists of four chapters:The first chapter is the summary of the right of silence, I introduce the concept of the right of silence its birth in England development in America and different theories in China.The second chapter explains the general value of the Right of Silence. From different angles,I discuss its values for the prosecutors from different angels, including rights protecting values and freedom values of Right of Silence. And then I discuss its value for the prosecutors, including veracity and justice to insure the criminal litigation. Finally I discuss the thyroidal value of the right of silence from the following aspects: the value of protecting human rights, the value of maintaining proceeding justice and the value of realizing the proceeding structure balance.The third Chapter does a systematical study on the theory foundation of the right of silence. It has a deep social root in the putting up of the right of silence, just as any democratic conception, not a single social phenomenon. This essay, from the concept of rights-based,ethical foundation,human rights theory and the theory of general agreement utilitarian theory of a systematic analysis of the Right of Silence,I explain its theoretical foundation.The last part is the core of this essay, in which I analyze the feasibility of its implementation. First, I introduce the judicial practice in China and different kinds of opinions that our scholars and judiciaries hold. Then I analyze why it is not suitable for China to introduce the right of silence, the main reasons are as follows: First, it is the impact of our traditional law culture, which is lack of the cultural foundation of Right of Silence; second, the existence of Right to Silence can't benefit the protection of human rights; third, by using the Right to Silence system will protect human rights,but it is not the only way to curb extortion of confessions by torture;fourth by the Right of Silence system is not conducive to fight against crime and will definitely affect the efficiency of the investigation,and may provide for the real criminals escaped punishment opportunities. And then I make a full prospect for the Right of Silence system as follows: our country is lacking in the objective conditions of Right of Silence. We must give full consideration to the introduction of and the real possibility of localized problems. We should also see the Right of Silence has become a recognized basic human rights and an important item of the criminal justice system in the modern Law–ruled countries. It is a trend to bring Right of Silence system into China, as long as everything is prepared, we will establish our own Right of Silence system which takes on our characteristics.