建立符合我国国情的沉默权制度

Establishing the System of the Right of Silence in Accordance with Chinese Conditions

处于被司法机关审查状态的公民 ,可以自主地选择说话或不说话的方式表达其意志。沉默的表示应当视为以不作为的方式与司法机关合作 ,将正常行使沉默权纳入抗拒的范畴是不妥的。我国“坦白从宽 ,抗拒从严”的传统政策应当修正为 :“坦白应当从宽 ,沉默受到保护 ,抗拒必须从严”。正确意义上的“坦白从宽 ,抗拒从严”与沉默权并不矛盾。在保护人权的同时 ,必须强化国家的司法权 ,根据我国的国情 ,对沉默权应当予以必要的限制。当前 ,应当审慎地对刑诉法第93条进行修改 。

The citizens investigated by judicial office can independently choose the way to express their own wills by speaking or non-speaking. The expression by silence should be regarded as cooperationwith judicial office by means of non-commission. It is inappropriate to bring the exercise of the right ofsilence into the sphere of resistance. The traditional policy of 'leniency toward those who acknowledge their crimes but severe punishment of those who stubbornly refuse to do so' should be revised into'leniency toward those who acknowledge their crimes, protection of those who are silent, and severe punishment of those who stubbornly refuse to do so'. The policy of 'leniency toward those who acknowledge their crimes but severe punishment of those who stubbornly refuse to do so' is not contradictory to the right of silence. The sword of justice of the country must be strengthened while protecting human rights. The right of silence should be necessarily restricted according to the conditions of China. At present, the article 93 of criminal procedural law should be amended carefully and specifies the limited exercise of the right of silence.