论无罪假定原则与沉默权

On relationship between principle of presumption of innocence and the right to silence

颇受我国学界青睐的西方那样宽泛的沉默权并非无罪假定原则的必然要求;把被告人的沉默作为其有罪或加重其刑罚的根据,不是不可以,而是附条件地可以。轻易地断定西方的沉默权都是由无罪假定原则必然引申出来的是有害的。沉默权好不好,关键要看它是否适度,是否适合国情,是否与义务相协调。适度的沉默权,其价值根基在于人格尊严和言论自由不可非法侵犯。在中国,适度的沉默权,应是与“如实回答”义务相协调的沉默权。

The right to silence of China＇s law with leniency, which is welcomed by Chinese law scholars, is not the necessary requirement of the principle of presumption of innocence. It is not accepted but accepted on conditions that the silence of a defender is regarded as guilt or as the basis to execute more severe penalty. It is harmful that the right of silence in western countries results from the principle of presumption of innocence. Whether the right to silence is correct depends on whether it is suitable, whether it is fit for China＇s condition and whether it is coordinated with obligations. The value of the right to silence lies in that person＇s dignity and freedom to speak are not illegally infringed. In China, the right to silence should be appropriate to some degree and should be harmonious with the obligation to tell the truth.