Prosecutors The Burden Of Proof

The structure of the article is divided into: Introduction, Chapter l:The basic position of the burden of proof of the prosecutor .Chapter 2: the presumption of law - the existent character dimension of the burden of proof of the prosecutor, Chapter 3: the fluctuant interaction between the burden of proof of the defendant and the burden of proof of the prosecutor; Chapter 4: the object of proof - the range of dimension of the burden of proof of the prosecutor, Chapter 5: the changing interaction between the form of the defendant's statement and the burden of proof of the prosecutor, Chapter 6: Standard of proof-the scale of the burden of proof of the prosecutor, Chapter 7: the interaction between the level of the criminal standards of proof and the burden of proof of the prosecutor, Chapter 8: a number of thinking about the improvement of the system of the burden of proof of the prosecutor in our country ,and the conclusions. The major clue is around the basic conception of burden of proof of the prosecutor ,the three dimensions, the three interactions and the improvement suggestions . The three dimensions are the static contents of the burden of the prosecutor which indicate the inevitable relationship of the burden of proof and the related proof conception. The three interactions are dynamic contents which indicate the complex type of the burden of proof in the legal practice. The three dimensions are the basis of the three interactions and the three interactions are the changing form of the three dimensions.In the introduction, the object, the research reality, the significance and the method of the study of the burden of the prosecutors are elaborated.Chapter 1 is the basic part of the article, where the concept of the burden of proof of the prosecutor, the background of the system, the characteristics of the nature and the structure, as well as the comparison of the related concepts are intently elaborated. The first section of this charter put forwards the concept of 'burden of proof after seven basic elements are analyzed. After the accused person gives his allegation on the accused fact, based on the judicial interpretation which allocates the responsibility of proof, the man who is being accused gives evidence to proof that his is an innocent person or takes the risk of non-persuasion. The second section of this chapter introduces the concept of burden of proof and its content differences in civil law system and common law system. The burden of proof on both legal systems is different. The third section of this chapter analyzes burden of proof from the aspect of model type. In this section, the essential of burden of proof is to avoid the risk of lose when the really false is unclear and to pursuit the winning of the case. This section gives a further summary on the duel characters of burden of proof and reasons on its gradually advanced shape. Especially, this section analyses the behavior and outcome responsibility from the inter-structure of 'burden of proof'. It tells us several more important conclusions, such as innocent presumption requests that the responsibility of prosecutor can only be a complete persuasive responsibility, and the burden of proof of defendant can only be a doubtful point establishing responsibility. From the aspect of type and structure, this section shows that duel characters and the gradually advanced shape do not conflict each other at all, on the contrary, it complements each other. It is not logical to mix up the different concepts of burden of proof between two legal systems and simply gives the difference the same treatment. If we do so, we essentially confused the inner structure and the outer type of the burden of proof. The fourth section of this chapter gives a further analysis on the difference between the burden of proof and the necessity of proof, the burden of proof of prosecutor, the responsibility of detection of the police and the judgment responsibility of the judges. The connection and differences between the burden of proof and the necessity of proof are the main point of this chapter. Ten differences are summarized in this section. On discussing the connection and difference between the burden of proof of prosecutor, the responsibility of detection of the police and the judgment responsibility of the judges, the article emphasize that they have commonness on authority responsibility and get bright individuality on the broad sense and narrow sense of prove conception.The second chapter is the main segment of this article. It constructs the burden of proof ofprosecutor. It argues that the essence dimension of burden of proof of prosecutor is thepresumption of law. The first section of this chapter investigates various definition ofpresumption at first. It argues that the basic of presumption is experience rules. Afterwards, theauthor analyses the characters, definition and connection between fact inference andpresumption of law. They have prominent distinction and have countless connections. Thepresumption of law is higher than the fact inference, but the legal reasoning is totally based onthe real fact. The fact inference is influenced by the value of law and the need of public policeand shifts from the simple experience logic to the legal logic. The second section of this chapterdiscusses the meaning of presumption. The author present that the fact inference generates thenecessity of proof, and the presumption of law generates the burden of proof. It analysesthree-step process of the generation of burden of proof and the necessity of proof and furtherpoints out that innocent presumption is the essence dimension of burden of proof. In author'spoint of view, the burden of proof of prosecutor is engrained and statutory. It can not betranslated in the process of prosecution. Point of issue in proving behaviors, evidential burdenand necessity of proof can translate formally. Burden of proof lies upon him who affirms, nothim who denies. It is the origin and foundation of responsibility allocation of both civil law andcommon law system. But it has history limitation as well. The changing world and changingcomplexity of our lives give it significant challenges. Sometimes, it may "shift" to the defendantif he/she raises a factual issue in defense. The author thinks that innocent presumption is thefundamental principle of burden of proof. The prosecutor himself should take pre-implementation, final implementation and collective implementation responsibility. Innocent presumption is not the unique and absolute principle of allocation of burden of proof in criminal process. On the contrary, it has exceptions. Only the prosecutor is the unique core of burden of proof in criminal, and this principle can survive in the test of principle of constitution. Analyzing from basic view, the burden of proof and the objective obligations of prosecutor is the concept in two different areas. They are not necessarily link, and there was no fundamental conflict between them as well. They both connect to the prosecutor and play different roles in different areas. From worldwide, the burden of proof and the objective obligations of prosecutor are coexistence and develop in symbiotic way.In the third chapter, the author argues that there is an inversed interactive relation between the burden of proof of the accused and the prosecutor. In this chapter, the prosecutor's burden of proof has developed from an absolute one to a relative one. In the first section of this chapter, the author introduces different concepts of burden of proof in both civil law system and common law system. In civil law system, burden of proof is standard and explicit. In common law system, burden of proof is comprehensive adjustable and flexible. The author further pointed out that, in criminal prosecution, influenced by the constitutional principle that presumption of innocence, the assignment of criminal burden of proof is different from the civil burden of proof assignment in some special characteristics. Finally, the author analyzed the legal forms in which the accused could undertake the burden of proof, and believed that there are generally two forms in two different levels. In Section III, the author summed up and listed all kinds of situations in which the accused undertake implied responsibilities in the criminal law in our country. And all the conclusions are concluded from analyzing the implied presumption of law behind our criminal code, code of criminal procedure and some related legal interpretations.In Chapter 4, the author dissertates that the object of proof is the dimension of the range of prosecutors' burden of proof. In Section I of this chapter prosecutor's object of proof has been defined. After introducing and analyzing various theories on the range of prosecutors' object of proof, the author argues that object of proof contains static facts of prosecution point and dynamic facts of point of issue. The facts of prosecution points listed in the indictment. It is the accused fact in defendant's confession, keeping silence and passive negativity. In the Section II of this chapter, the author has expounded the relationship between object of proof and burden of proof from two aspects. The writer expatiates that object of proof not only defined the scope of burden of proof between prosecutor and defendant, but also defined the range of the judgment of the court. Thus object of proof is the dimension to the range of burden of proof. The third section of this chapter expounded mainly about the theory of criminal constitution in the civil and common law systems and analyzed the influence on the object of proof. The writer further analyzed the theory of criminal constitution in our country, and argues that criminal constitution contains basic element and presumption element.In Chapter 5, it elaborated an interactive relation that the scope of the public prosecutor's burden of proof changes conversely as the shape of the accused person's statement increases or decreases, thus formed three types of the burden of proof of public prosecutor, the elementary type, the contractive type and the expansive type. In Section I, it elaborated two concepts that silence and passive negativity of the accused person along with their influences to the burden of proof of public prosecutors, and proposed the silence and the passive negativity of the accused person have changed neither the scope of the object nor the complicatedness of the fulfillment procedure of the burden of proof of public prosecutors, that resulted in the elementary form. In Section II, it elaborated the concept of confession, the voluntary confession rule and the corroborative confession rule, proposed on the one hand that the confession of the accused will avoid and reduce the scope of object which need to be proved by the public prosecutor, and on the other hand simplified the fulfillment procedure of proving that formed the contractive type. As examples for avoiding and reducing the scope of the object need to be proved, in Anglo-American culture , the procedure "the guilty reply procedure" avoid all the burden of proof of public prosecutors relying on doctrine of punishment on party, and in Continental legal culture, limited by the corroborative confession rule, the object of proof of public prosecutors has not been completely avoided, however, in some aspects such as subjective criminal intent, it has been stipulated explicitly to reduce the scope of object of proof of public prosecutors, what's more important, the confession of the accused actually reduces the scope of proof when public prosecutors construct the evidence system of indictment in the judicial practice .when it comes to avoid and simplify the fulfillment procedure, such as "the guilty reply procedure" in Anglo-American legal system and summery procedure in our country's criminal procedure can be example of the former, both of mem actually avoided the procedure when public prosecutors fulfill the burden of proof, for the latter, simplification of trial of ordinary procedure in our country's criminal prosecution in fact simplified the fulfillment procedure. Took the efficiency value in our criminal prosecution into consideration and absorbed doctrine of punishment on party in Anglo-American legal system ,this section also proposed to consummate the reducing effect to the public prosecutors' burden of proof by the confession of the accused in our country: first, we should make it clear that the confession of the accused could avoid and reduce the scope of the object of public prosecutors' burden of proof, second, we should expand the avoiding and reducing effect of the confession of the accused on the procedure when public prosecutors fulfill the burden of proof. In Section III, it elaborated the concrete sorts of the plea of the accused and their nature of proof, and proposed that the plea of the accused could not only expand the scope of the object of public prosecutors' burden of proof, but also complicate the procedure when public prosecutors fulfill the burden of proof, depending on which the expansive type of burden of proof has formed. This section pointed out particularly two sorts of nature of proof of the plea made by the accused, they are the plea based on burden of proof and the plea based on necessity of proof, and this section made concrete comparisons regarding this.The sixth chapter discusses that a strict meaning of standard of proof should be measures in the course of offering evidence to prove the object which was accused by the prosecutor or proved by the defendant. In a wide meaning, standard of proof contains several proving requirements of proceedings and procedural subjects: register standard, detention standard, arrest standard, investigation ending standard, prosecution standard, conviction and sentencing standard; subject of police examination standard , prosecutor's standard of proof and judgment of the court which also be called check standard. In Section II of this chapter, the author discusses the relationship between discretional evaluation of evidence and standard of proof. On the basis of introducing the concept and historic development of discretional evaluation of evidence, the writer advanced the dialectical relationship. In Section three of this chapter, the author discusses the relationship between burden of proof and standard of proof.Chapter 7 debates on the interaction between the level of burden of criminal proof and the difference of prosecutor who bear the burden of proof; accordingly, it formed a strict burden of proof, weakening trend burden of proof and easy burden of proof. Section I of this chapter demonstrated the inherent level of standard of criminal proof from four aspects: the difference in object of proof, the difference in nature of proof, the difference in object of proof and the difference in nature of case. It further introduces the level of standard of proof of criminal in Anglo-American law system and Roman-Germanic law system. The second section, the article introduces the probability theory and establishes our level form of standard of proof on prosecutors.The article put out forward three kinds of level: the first level-undoubtedly standards with more than 99 percentage probability reflects the strict burden of proof, it is the main form standard of proof which the prosecutor has taken on; the second level-undoubtedly but with suspicious standards with more than 80 percentage probability reflects the weakening trend burden of proof, it is an auxiliary form; the third level-advantages credible standards with more than 50 percentage probability. That reflects easy burden of proof, it is a secondary auxiliary form. In the third section, interpreting cases through the dimension of proof, the author demonstrates the objective existence and enforcement of the three levels of standard of proof on prosecution.Chapter 8 is the last part provides sound thinking and recommendations about the burden of proof on the basis of analysis the prosecutor burden of proof system deficiencies. Section I of this chapter pointed out that we cancelled the obligation of the defendant to tell the truth, that is, the defendant did not have self-incrimination obligation is the basic premise to improve our burden of proof system on prosecutor. The article discusses that against self-incrimination is the essential international norms in criminal procedure, further more, the writer points out that the truthful testimony has a fundamental conflict with burden of proof system, the performance of the conflict as follows: the confession obligation denying the basic premise of the burden of criminal proof; distorting the basic nature of the burden of criminal proof; ruining the principle of allocating burden of criminal proof. Further more, the article focuses on the positive significance of abolishing the burden of defendant to tell the truth, such as admitting the defendant has the real status in proceeding, establishing the real burden of proof system, containing the phenomenon of extorting confessions by torture. Section II of this chapter provides that establishing a scientific principal for allocating burden of proof is the fundamental requirement to improve our burden of proof on prosecutor. After the article analyses the burden of criminal proof theory in Anglo-American law system and Roman-Germanic law system, briefly, the author reviews a number of pinions about our distribution of burden of criminal proof. The article proposes that our country should be established on the principle of the presumption of innocence, and is detrimental to the presumption of exceptions prove liability principle. This section analyses the realistic condition that defendant takes on the burden of proof, the writer believes that the defendant should be strictly limited to the scope of the burden of proof in that ways and means. That's including creating the obvious burden of proof of defendant carefully, establishing a presumption of law in favor of the defendant, at the same time encouraging the defendant to take on the proof if it is necessary to achieve an effective defense. This section proposes in exceptional circumstances reducing the prosecutor's burden of proof in a fair and appropriate way, that is, establishes a measurable adverse presumption of specific rules which is not in the favor of the defendant, including elements of the exceptional rules, near the facts independence rules, damage normal rules and harm to society rules, the article cites and demonstrates several specific circumstances to improve the defendant takes on the burden of proof. More over, at the same time, the article said clearly that the nature of the defendant takes on the burden is the initial form of the burden to provide evidence; burden to provide evidence in the implementation process begin in the middle, with the obvious advantages of striking after then. Section III discuses two specific problems which is involved in our burden of proof on prosecutor in the judicial practice, providing prosecutor takes on the burden in the facts of the process especially in the illegal evidence exclusion commitment, determining burden of proof on prosecutor reasonably and the limits of the judge exercise their investigation out-of-court, that is, establishing the judge's investigation out-of-court should be followed this three doctrines: the fairness of the position, supplementary content and the limit of legal.In conclusion, the article not only summarized the viewpoints and the innovation of academy, but also pointed out the shortcoming in the article and the endeavor direction to fulfilling the theory.