China To Establish The Study Of The Criminal Justice System Keeping Silent

The suspect or indicted has the rights to be silent according to the international rules of criminal procedures; whereas she takes the responsibility of telling truth for the interrogation of the prosecutor and justice in China. In contrast. We should consider the necessity to establish this system, and the extent to establish it, and the reform of our country's criminal procedure upon such establishment of the system of the rights to be silentoThe thesis analyzes the necessity to constitute that system in the criminal procedural law in China: from the points of the jurisprudence the procedural theories relating to it and the demands in real world. From the point of the jurisprudence, the building up of the system is beneficial to ensure the status of the suspected or indicted as an independent subject. In order to satisfy such requirements, the accused or indicted should be treated as participant in the litigation with a status equal to that of the public prosecution and justice and can deal with the latter as to the dispute arising from the proceedings, on equal terms. Therefore it is forbidden that the accused and indicted is compelled to receive some certain action, decisions or rulings under oppression only as on object .As an result, as long as the accused is vested with the rights to be silent, his freedom of consciousness and action which should be asserted in the proceedings will be embodied, more importantly, the rights to be silent is also his natural rights. Based on the theory of rights of nature which teach that each and every member of society enjoys the freedom of speech and associationwith other members and that the acquisition and exercise of the powers of state depend on the basic natural rights, because the right to be silent, as a kind of right to say nothing falls within the category of the freedom of the speech, as a kind of right which means attending the court as subject's capacity falls within the category of the freedom of association with other social members, all of which should be attributable to a suspect and the accused. In addition , such theory characterizes emphasis on individual, which requires, when the government in the name of nation, deprives any social member of life, freedom or possessions, the suspect or accused to have rights to defend the said action carried out in the name of nation and to keep silent with respect to the interrogations. From the view of the criminal procedure, through the system, the principle of the assumption of innocence can be carried out, and the adversary procedure can be maintained. According to the principle of the assumption of innocence, the burden of proof is upon the prosecution rather than the suspect or accused who whereby have rights to be silent. Secondly, under the said principle, the suspect or accused is innocent citizen on whose substantive rights no limitations should be placed, and thereby who enjoy the said rights, including the rights to silent. In addition, the system of the rights to be silent, infused with the spirits of the fairness of procedure, Provides the operative provisions which are beneficial to the opposing party in the course of proceedings. Now turn to the theory concerning procedural fabric, two of which essentials lie in the accused equal standing with the prosecution and neutral judge. To carry out such theory, it is necessary to deter the government from being dictator with rank powers by conferring the rights to be silenton the accused.In consideration of the demands in real world, the system is a available remedy for procedural offences by the police and prosecution which conduces to correct the compellation of confession of the suspect by torture from the police and prosecution. In the criminal justice practices in china, it is universal and continual that the judiciary violates the procedural law, which is involved in the compellation of confession of the suspect by torture or other unlawful means, overdue detentions and abuses of mandatory measures, and so on. The system of the rights to...