对刑事被告人沉默权的否定性思考

The Negative Pondering over the Rights to Remain Silent of Accused

沉默权的设置依据不是因为它是一种更加经济、更有效率的制度 ,其设立依据在于刑法人道主义、人权保障、对抗制刑事诉讼原理等等 ,但是实行一种无法实行的或实行代价太大的制度也并不意味着公平、正义。探讨沉默权问题应当综合考虑多种因素 ,一项诉讼制度的设立既要解决价值取向问题 ,又要解决具体的技术问题 ,既不能太超前以至于脱离实践 ,又不能脱离中国的实际太远以至于成为“空中楼阁” ;既要充分重视保护人权 ,也要适当考虑打击犯罪维护法律秩序的需要 ,从而实现利益与价值的平衡。

The establishing basis of the rights to remain silent lies in its humanitarianism of criminal law, its guaranteeing the human rights and the oppositional criminal suit principle rather than it is a more economical and efficient system. However, it does not mean equity and justice to implement a system that is impossible to implement or costs too much. To discuss the rights to remain silent should take various factors into consideration. The establishment of a lawsuit system should not only solve the problem of value orientation but also figure out the specific technological problems, should neither advance forward too much to be divorced from practice nor lose contact with the reality in China so as to be the castle in the air, should not only attach much importance to protecting the human rights but also regard the demand of taking measures against crime and defend the legal order. Thus, the balance between the interests and value can be achieved.