論被追訴人沉默的證據能力

On Admissibility of the Criminal Defendant's Silence

被追訴人面對訊問時可能會保持沉默是客觀存在的事實。我國理論界普遍存在著過於簡單化地理解不被強迫自證其罪的基本理論而一概否定被追訴人沉默證據能 力的觀點。被追訴人沉默與案件事實存在關聯性，認為存在排除被追訴人沉默證據能力的正當理由之觀點值得商榷。西方法治國家對被追訴人沉默的證據能力並非一概持否定態度，而是在一定的程度上認可其證據能力。對被追訴人沉默的證據能力之規定，各國雖然存在著差異，但也有相通之處。在《刑事訴訟法》已經確立不被強迫自證其罪的背景下，我國有必要建立被追訴人沉默的證據能力規則，明確被追訴人沉默可以有條件地作為定罪的間接證據和證明其主觀態度的量刑證據使用。

It is an objective fact that when being interrogated, the accused may choose to keep silent. There is a universal phenomenon among the theorists in China that the admissibility of the criminal defendant's silence is totally denied because of the simplistic understanding of the theory of privilege against self-incrimination. Since the criminal defendant's silence is associated with the facts of the case, the point that there is justified reason to exclude the admissibility of the criminal defendant's silence is worth rethinking. Far from the domestic mainstream view, western countries recognize the admissibility of the criminal defendant's silence to a larger extent instead of totally denying it. Although there exist big differences of the regulations about it among them, there are still obvious similarities. Under the background that privilege against self-incrimination has been recognized by the Criminal Procedure Law in China, it is necessary to establish the rules of admissibility of the criminal defendant's silence, under which the criminal defendant's silence can be used as circumstantial evidence to convict the accused and prove his subjective attitude under certain circumstances.