Research On The Presumption In Criminal Law

As a subject joins up substantive law and adjective law, criminal presumption is arising greater interest in academic circle and justice department. Presumption is apparently a subtle and minor problem. However, it is associated with the constitutional system of crime and criminal component and tangles with proceedings pattern and burden of proof. Thus, presumption provides a perspective of full view. On the one hand, the legislature and judicial authority have a preference for presumption considering actual requirement. On the other hand, it is ambiguous. The dispute and anxiety on presumption have been existing for a long time, but there is no indication of decreasing. Both the confusion in theory and arbitrariness in juridical practice state that presumption is a research subject full of challenge. Holding the idea of integration of criminal justice, this treatise attempts to conduct a comprehensive research on presumption from more viewing angles, such as substantive law and adjective law, legislation and judicature. Besides the preface and conclusion, the treatise consists of five chapters, amounting to more than 2,00,000 words.In the preface, the treatise begins with historical review and makes a brief analysis of the important position of presumption in legislation and juridical practice. Meanwhile, it points out the current situtation and perplexity in presumption research. So the main themes to study is made clear.The first chapter is basic theory about presumption, which answers an ontic question-"what is the presumption". Presumption is regarded as a magical concept that scholars pay more attention to but clarify less. From the contest of lexics, legislation practice and juristal theories,this treatise makes an elaborate explanation for presumption concept. Regarding whether to take presumption of fact as a category of presumption, the treatise makes a comprehensive and deep analysis of the reasons why presumption of fact is less valued in Anglo-American law and continental lagal system. It holds that presumption of fact is not an unnecessary concept. The treatise also differentiates presumption from inference, fiction and indirect evidence proving. Furthermore, it analyzes the attributes and functions of presumption.The Second chapter is about the foundations of presumption, which answers"Why presumption is legitimate". The discussion is conducted from epistemology and axiology. As far as epistemology is concerned, the treatise holds: the conclusion of presumption can meet the requirement of sober truth; presumption is rational and fuzzy proving method, thus according with the doctrine of proof arbitrament and the essence of litigant proving and presumption is partly unanimous with the principle of free evaluation of the evidence. Besides, presumption subtly imposes limit on the principle of free evaluation of the evidence, and so remains trace of legal evidence doctrine. As far as axiology is concerned, the treatise develops a new style and takes the profound influence on modern criminal law brought about by risk society as a fresh angle. Presumption involves complicated interests relationship. It is guided by utilitarianism to enhance the protection functions of criminal law and is also an equilibrium mechanism that shows consideration for safeguarding the defendants'human rights, which reflects the trend of criminal policy's intervention into criminal law.The third chapter is about the effect of presumption, which answers"what legal consequences presumption may bring about". Burden of proof can be divided into burden of producing evidence and burden of persuasion. The main effect of presumption is the influence on burden of proof between prosecutor and defendant. The effect on burden of proof of presumption of law and presumption of fact is different. Presumption of law belongs to burden of proof norm. Its establishment in legislation and the special principles of allocating burden of proof are different formulations of the same theme, not cause and effect in origin. But presumption usually seems to cause the reallocation of burden of proof, and thus creates exceptions as the principles of prosecutor assuming burden of proof. Presumption of law relieves the burden of proof on prosecutor part, and may also bring down the standard of conviction. Accordingly, both the burden of producing evidence and persuasion can be allocated to the defendant in special conditions. If the defendant is required to assume the burden of persuasion, it should be expressively regulated by law, and the defendant's burden can be sucessfully unloaded if its proving meets the standard of"more than less". Otherwise, the defendant is at the most required to assume the burden of producing evidence, and is only required to cause reasonable doubt into the mind of judges. The presumption of fact causes nothing to the allocation of burden of proof. It can allocate the burden of producing evidence to the defendant to rebut presumption against him, and the burden of prosecutor is relieved consequently. But the conviction standard shouldn't be lowered down. The presumption also causes effect on power allocation in judicial proceedings. It changes the power allocation between legislative and judicature, including the power between judges and the power between base courts and higher courts. Considering such influence, the effect of presumption should be reviewed and restricted. This treatise thus disscusses the constitutionality censor of presumption and restrictions by the principle of presumption of innonence. Presumption and the principle of presumption of innonence belong to different categories. They are unanimous on the whole, but potentionally conflicting in special conditions. In conclusion, the creation of presumption should have solid justified foundations and its application should be limited to a certain extent.The fourth chapter discusses the use of presumption in criminal legislation. Based on the review of constitutional system of crime in Anglo-American law and Continental law, the treatise holds that presumption functions have important entitative and procedure value, which is absent for our criminal component and becomes functional deficiency of the constitutional system of crime. So it is reasonable to introduce the system of Continental law into our legal system. Then the treatise presents actuality and characteristics of presumption legislation and considers that their exists many deficiencies such as: the decentralization of legislative authority, confusion and contradiction in legislative formulation, improper substantive legislation and absence of adjective law. Then the treatise ponders deeply over the advantages and disadvantages of supreme court as performing the quasi-legislative power to create presumption and points out the way to perfect presumption legislation. Finally, it holds that presumption is not the exclusive choice of coordinating the substantive law and adjective law. We must consider how to alleviate reliance on presumption and seek substitute legislative rule for presumption.The fifth chapter discusses the use of presumption in criminal practice. Firstly, the treatise introduces the current situation of its use and then analyzes its cause. Secondly, the treatise shows that we should establish several procedures as follows: procedure to claim the use of presumption; to ensure reliability of presumed facts; to rebut presumption; and means of relieving for defendant. It is also necessary to perfect the related complement system and procedure of presumption, such as: the improvement of verification mode of proof; reform of judicial procedure democracy; establishment of system of guidance by legal precedent; and reinforcement of reasoning the grounds of decision. With the establishment of the procedures above, the arbitrariness in applying presumption to judicial practice can be reduced to minimal extent. Finally, taking drug offences and bribery offences whose crime facts are difficult to prove for instances, the treatise illustrates how to apply presumption in proving crime facts.In the conclusion, the treatise generalizes the main ideas and innovations. Furthermore, it concludes that presumption seems as if dancing on the edge of cliff. Presumption is a subtle art and also test of the wisdom of legislators and judicatures.