Departmental Bulletin Paper 被告人の自己負罪拒否特権の発展過程 : 権利の実質化と刑事手続構造への影響という視点から
The Development of the Privilege Against Self-Incrimination from the Perspective of Substantiveness of the Privilege and its Effect on Criminal Procedure

方, 海日

16 ( 3 )  , pp.407 - 448 , 2017-11-10 , 一橋大学大学院法学研究科
This article investigates the origins and development of the privilege against selfincrimination. Through the examination of the various views concerning the origin and development of the privilege, this article analyzes the variation and also transformation of the privilege which eventually became the right of silence. Also, this study examines the relationship between the right of silence and the structure of the criminal procedure system in view of the substantive guarantee of the right of silence. Part Ⅱ of the article analyzes the maxim of “nemo tenetur” which was firstly mentioned in the ius commune in the 12th century, and the abolition of the statute Ex Officio in the 17th century. In addition, it also examines the popularization of the defense counsel after the 18th century by virtue of which the right of silence had been practically guaranteed. Part Ⅲ gives a broad overview of the development of the modern type of privilege against self-incrimination. Specifically, it indicates that abolition of the testimonial disqualification of defendants made it possible for defendants to have the comprehensive right of silence. Based on the above study, part Ⅳ concludes that development of the privilege against self-incrimination is the process of substantiveness of the privilege, and also the process of the transformation from inquisitorial system to adversarial system in which the independency of the defendants is steadily established.

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