论强制口供的存在必要--沉默权理论与实践反差的思考

沉默权作为西方刑事诉讼制度的重要内容被我国接受.然而,它在实践中不仅存在理论与实践的重大反差,而且存在法律文化的冲突,更为关键的是法律制度的建立和发展,应当照应社会发展的文明趋势,不能以单纯的人权取向为转移.所以,沉默权作为西方一定历史时期的法律产物,未必适应中国社会,未必是先进的诉讼制度,不应当盲目采纳.而强制口供不仅在中国而且在世界,不仅在过去而且在现在,都是普遍的法律制度和法治现象,具有不容忽视的存在理由和存在价值.

On Necessity of Compulsory Oral Confession--The Contrasts Between Theory of Right to Silence and Practice

Right to silence has been accepted by our country as an important component of the western system of criminal lawsuit. However, there're not only some contrasts between the theory and practice, but conflicts among different legal cultures. Moreover, the establishment and development of legal system should conform to the civilized trend of social development, and it's improper to overemphasize pure human rights. This paper points out that we shouldn't adopt the system of right to silence unrealistically because it came into being in a certain historical period, so it may not necessarily suit the society of China and be advanced system of lawsuit. On the other hand, compulsory oral confession is a universal legal system and phenomenon, both at home and abroad, in the past or at present, so its existing reasons and values can't be ignored.