论不强迫自证其罪原则

本文阐述了联合国人权公约中“不强迫自证其罪”规定的意义 ,分析了强迫自证其罪的构成 ,提出强迫自证其罪的法律后果分为 :国家责任、实施者责任和取得证据的排除。文章分析了目前在我国确立不强迫自证其罪原则的困难 ,同时也指出了这方面存在的有利条件。作者认为 ,在我国确立不强迫自证其罪原则不能一步到位 ,而需要逐步实现 ,并就此提出了具体的设想。

On the Doctrine of Not Compelling Anyone to Self-incriminate

The International Covenant on Civil and Political Rights recognizes that everyone charged with a criminal offence shall not be compelled to testify against himself or to confess guilt. This paper makes a comparative study on this clause and other relevant concepts, such as the right to silence, voluntary statement and the right against self-incrimination. The paper analyses conducts constituting "compelling", especially torture and other cruel, inhuman or degrading treatment; points out that the legal consequences of such "compelling" should be met by the government, the perpetrator and the evidence obtained with the illegal means should be excluded; indicates that China has not yet incorporated this right, however, China has made great progress on the aspect. Finally, the author suggests the necessary steps China might take, in accordance with its laws and realities, to adopt legislative or other measures to give effect to the right recognized in the international human rights treaties.