论权利放弃——以无罪推定权利为视角

On Waiver of Rights

人权作为一个整体是不可以放弃的,人权中的具体权利有些是可以放弃的。所放弃的权利必须是合法权利,必须是本人的权利,应当是自愿放弃,放弃权利不能违反法律、不能影响他人的权利,放弃权利所产生的法律后果由放弃人承当。以无罪推定为例,无罪推定作为被追诉人的权利在一些场合是可以放弃的,确立无罪推定放弃机制将有利于我国刑事司法改革,有利于司法公正和效率,有利于保障人权。

This paper puts forward the nature of human rights. The authors believe that human rights can not be waived as a whole pack. However, some particular rights may be waived on the conditions, i.e. the right is lawful; people can waive their own rights only, and must be voluntary to do so; to waive rights should not offend law and other persons＇ rights; any person who waives rights should take the consequence himself. The authors take presumption of innocence as an example to prove the points, and believe that ： presumption of innocence is a right entitled to the accused in criminal justice, which can be waived; to recognize presumption of innocence and its waiver in some occasions will be conducive to the reform of criminal justice, to judicial fairness, effectiveness, and to the protection of human rights in China.