Research On Presumption In Criminal Procedure And Civil Procedure

Presumption is a complicated legal system. There are confusions and debates about presumption as an introduced system from foreign countries to China in terms of definitions, nature,categorizations, effectiveness and relationship with the burden of proof. It is vital to find the origins to have an overview of the current status of presumption researches in China. Most of the researches initiated from the juridical practices from common law system countries, especially the USA, and only minor researches refer to the studies of scholars from Japan or Taiwan region about continental law system countries, especially Germany. By taking the chance of studying abroad in Germany, the author enriches this dissertation with legislation, jurisdiction and theory research status quo in Germany, and analyzes the core and derivations of presumption. The author expects that my works would contribute to the development of theories and the completion of related systems.This dissertation includes eight parts, including the introductions and ending part. The introduction mainly introduce the background of selecting this topic and the research status quo of this topic in China, in addition, it points out the academic methodology of this dissertation. the author holds the opinions that although there are common structures among different kinds of presumptions, it does not sufficient to support a unique concept and it does not indicate the nature of presumption. Therefore, the main body of this dissertation breaks in with different categories of presumption, and studies the detailed contents in each category.The first chapter studies the legal presumption (“gesetzliche Vermutungen”in German) with four sections. The first section studies the definition of legal presumption. It points out that legal presumption can be divided into legal presumption on facts and legal presumption on rights. Legal presumption on rights requires the objects to be presumed is not a fact but a right, or right state, besides this, it can be analogized, just like that legal presumption on facts can be adopted in many areas. Except in certain rare extreme circumstances, the legislator setup presumption based on other measures, they use experience rules as indispensible. Meanwhile, the usage of experience rules and legal standard of proof do not conflict.The second section studies the differences between legal presumption and fictions. It points out that there are no connections between these two systems. Fiction judges constitutive component b to share the same consequence remarked by the law for constitutive component a by treating constitutive component b to be equal to constitutive component a. From this perspective, fiction is a simplified legislation technique. Fictions cannot be rebutted. The third section studies fake presumptions in law and the author hold the opinions that the so-called“presumption of innocence”or“presumptions of Health”(Presumption on psychological status) are neither real presumption. The fourth section emphasizes on the study of the distinguishing features of legal presumption on rights. The author holds the opinions that the conclusion of whether there is a right are made in fact based on the comprehensive answer taking considerations of a series of facts and their subsumption (“subsumtion”in German) to corresponding laws or regulations.The second chapter researches actual presumptions (“tats?chliche Vermutung”in German). There are two sections in this chapter. The first section studies the meaning of actual presumptions. The author holds the opinions that we should at first recognize but not avoid the term of actual presumptions. Actual presumptions have no source of laws, and it is a process that the judge concludes that another main fact exists based on certain facts by following logic rules and experience rules. The second section focuses on the studies of the two kinds of actual presumptions, which are differentiated under the situations to determine facts by using prima-facie evidence or circumstantial evidence. Prima-facie evidence is based on“Empirical fundamental rules”or“Golden empirical rules”, it is deduced with“typical event process”as premises, and it has a“whatever-determine”(“irgendwie-Feststellung”in German ) structure. Circumstantial evidence is also called indirect evidence. It is based on“Simple empirical rules”, and it can be divided into ring of evidence (“Indizienring”in German) and chain of evidence(“Indizienkette”in German).This section also points out the similarities and differences between prima-facie evidence and circumstantial evidence.The third chapter researches the relationship between presumption and burden of proof (“Beweislast”in German). There are five sections in this chapter. The first section mainly studies the essence of burden of proof. It infers that burden of proof can be divided in to subjective burden of proof, also called the burden of producing evidence (“Beweisführungslast”in German), and objective burden of proof, also called the burden of persuasion (“Feststellungslast”in German).The objective burden of proof guided how should the judge make a decision under non liquet. It tells that the objective burden of proof is basic, and it determines the scope of the subjective burden of proof. The second section studies the distribution of burden of proof. It illustrates that the distribution of burden of proof must separate from specific litigations and litigation states. It is the legislator who distributed the burden of proof in advance. The Major opinion about distribution of the burden of proof in civil procedure is statutes classification. Meanwhile, the burden of proof in criminal procedure are the responsibilities of procuratorate due to the doctrine of function and power in criminal procedure, the objective obligations of procuratorate, and basic law principles such as presumption of innocence and in dubio pro reo. The exception is that the defendant should take the burden of proof for the property source by applying the article of“crime of holding a huge amount of property with unidentified sources”in China. The third section studies the positioning of burden of proof system, and it states the significance of this positioning. It shows that burden of proof is essentially substantive provision. The fourth section discusses the concepts which are relevant to burden of proof, mainly rules of proof and rules of the burden of proof, assertive evidence and counterevidence (“Hauptbeweis”und“Gegenbeweis”in German). The fifth section studies the relationship between presumption and burden of proof. It analyzes that legal presumption is a special burden of proof rule, whilst actual presumption does not effect to the original distribution of burden of proof.The fourth chapter researches the applying of legal presumption. There are two sections in this chapter. The first section studies the relationship between legal presumption and criminal procedure. The point is that legal presumption should not be used in criminal procedure because of any possible conversed burden of proof. The second section studies legal presumption in civil laws. It points out that we should strictly distinguish legal presumption and so-called explanation rules.The fifth chapter researches finding facts through prima-facie evidence, which is a form of actual presumption. There are three sections in this chapter. The first section studies the adoptability of prima-facie evidence in civil lawsuits. It points out that prima-facie evidence is mainly used to affirm causations and faults, and prima-facie evidence can be used in affirming other facts if there are proper empirical rules. The second section studies the adoptability of prima-facie evidence in criminal cases. It states that there are no conflicts between prima-facie evidence and the fundamental principles in criminal procedure, such as the obligation to investigate (“Untersuchungsgrundsatz”in German)and in dubio pro reo. Prima-facie evidence is mainly used in affirming certain causations in criminal laws, especially in the criminal cases analyzing product liability in terms of causes and damages. There are possibilities to adopt it in environmental criminal domains. The third section discusses the question about how to regulate prima-facie evidence in juridical practices. It concludes that the“exhaustive principle”should be applied at the first time adopting a prima-facie evidence. Furthermore, the usage of prima-facie evidence should not conflict with other laws. In additional, only all the perquisites are fulfilled can the prima-facie evidence be applied. The sixth chapter researches another form of actual presumption, which applies circumstantial evidences to affirm facts. There are four sections in this chapter. The first section discusses the necessity and legality to affirm facts by utilizing circumstantial evidences. The second section mainly studies relevant practices in legislation and jurisdictions. It points out that there were records of affirming intention through circumstantial evidences as early as when The Justinian Code was proclaimed. The third section mainly researches the adoptability of affirming facts through circumstantial evidences in criminal cases. To be more specific, it is assured that utilizing circumstantial evidences is significant to affirm criminal components subjectively in China in cases related to drugs, frauds, smugglings, robbing and stealing motor vehicles, money-launderings, corruptions, etc. The fourth section studies the regulations to use circumstantial evidences. First of all, the fact of the case must be reliable as foundation. Second of all, the judge should disclose his or her moral conviction on time, and respect the counterevidence from the defendant. Last of all, the overall evaluation of the facts of the case must achieve legal standard of proof.The ending part mainly researches presumption related system construction and development. In criminal procedure, we should convert our minds, and actually achieve presumption of innocence and in dubio pro reo. In addition, we should strengthen the reasoning of the written judgments and the actual guides to procedure from the judges. We should also improve the system of defense, reform the trend of more bureaucratic level of trials, and increase the legal competences of judicial personnel.