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Criminal Standard Of Proof

Posted on:2006-10-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y H LiFull Text:PDF
GTID:1116360152485551Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Criminal standard of evidence is a theoretical and practical problem, which iswidely concerned by scholars in both China and foreign countries. The discussion aboutcriminal standard of evidence has attracted a lot of scholars, but still not an academicbook was formed on this topic. Interested in this, I wrote this paper to probe this area.The paper is divided into 9 chapters, which includes the followings: Chapter 1, the summary of standard of evidence, mainly discusses the relatedconcepts of standard of evidence. Procedural proof includes not only proof to oneself,but proof to others; not only proof during trial, but proof during pretrial stage. Thestandard of proof to oneself and proof to the others are thought to be two sides of a coin,as we examine the scenery of a peak from various angles. Chapter 2, the history of criminal standard of evidence, mainly introduces theanalyses the formation and development of criminal procedural standard of evidence inChina and other countries. In the part of foreign countries, the standard of evident bygod decision, "beyond reasonable doubt" in common law countries, and "feel sure"standard in civil law countries are introduced. In the part of China, the proof standard ofancient China, the proof standard before 1949, and the proof standard of "clear criminalfacts supported by conclusive and sufficient evidence" by current criminal procedurelaw are discussed. Chapter 3, criminal standard of evidence and epistemology, the theoretical basisof criminal standard of evidence includes not epistemology but theory of value. As isknown to all, the disputes about the standard of proof in China is heated at present. Thischapter mainly focuses on the discussion of the theoretical basis on the criminalstandard of evidence, epistemology theory, and the arguments on the epistemologytheory among the theorists in China. Procedural conviction is an action of understandingseeking unknown from known and is conducted by epistemology naturally, which is thesame at all times and in all lands. Therefore, the standard of evidence in China is firmlybased on materialism theory. Chapter 4, the economical analysis of standard of evidence. With the raising ofproof criterion, the marginal revenue increases and the marginal cost decreases. Themost appropriate proof criterion should be decided by maximum social net revenue. Ifthe proof criterion's marginal social revenue equals it's marginal social cost, the socialnet revenue would reach it's maximum, the proof criterion would be most appropriate.The different cases and behaviors in criminal procedure have different marginal revenueof proof criterion, so they should have different proof criterion. Raising the proofcriterion would cause different marginal cost and revenue to the police bureau,prosecutor bureau and court. Chapter 5,criminal policy and criminal standard of evidence, mainly analyzes theinfluences of criminal policy to standard of evidence and the decrease of criminalstandard of evidence. "Two basics" are coordinate with the "clear criminal factssupported by conclusive and sufficient evidence" prescribed in criminal procedure law.Although to decrease the standard of evidence is not put in "two basics", we havedifferent understanding in judicial practice, which decrease the criminal standard ofevidence to some extent and limit. To punish crimes leniently while there is notsufficient evidence has met the intent of the public to punish crimes while preventingwrongful death penalty. Chapter 6, is about the presumption and criminal standard of evidence.Presumption of fact has a basic fact and can be rebutted. Presumption of fact is a kind ofway of proof in criminal procedure, just like proof with evidence. Presumption of factcan decline the difficulty of proof and crack down on criminal activities effectively.Presumption of fact can be used to testify subjective aspects and objective aspects ofcrime. If there is reasonable probability, the rebuttal to presumption of fact can beestablished. Presumption of fact must obey strict regula...
Keywords/Search Tags:criminal standard of evidence, epistemology, economical analysis, criminal policy, different forms, differences, precedent system
PDF Full Text Request
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