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On The Demonstration Of Procedural Facts Of Criminal Procedure

Posted on:2012-02-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:M S WangFull Text:PDF
GTID:1266330395989321Subject:Criminal Procedure Law
Abstract/Summary:PDF Full Text Request
The current criminal evidence theory is based on substantive facts, the article is on a evidence theory on procedural facts, according to reach on procedural facts is in blank. The purpose of proof of procedure facts is to protect human rights and discover the truth, refer to the basic characteristics of procedural facts. Based on the purpose of proof and efficiency, the proof method of procedural facts is different from the substantive facts. The proof method of substantive facts is strengbeweis because it is decisive fact due to litigation results, and the proof method of substantive facts is freibeweis due to its characteristics.According to the method of freibeweis, the author constructs the burden of proof distribution theory and multi-level proof standard theory. The research of proof theory on procedural facts must return to the practice,the author put forward ideas to perfect the proof of procedural facts and the supporting system.This paper is composed of introduction, five chapters and conclusion. The introduction mainly explores the following three questions:the importance of this subject, the current study situation and the research methods. This paper insists that study of demonstration of facts in procedural law is very important in extending study scope of evidence law, pushing the reform of legal system and promoting the legalization of procedure. The current study situation shows that researchers have already studied the demonstration of procedural fact, but not systematically or comprehensively.Chapter One explores the scope of facts in criminal procedure. After studying the concept of facts and legal facts, we conclude mat fact is a kind of objective facts as well as the statement of experience. However, the fact of statute contains four aspects:legal fact is the fact of statute; the fact that produces legal effect; the fact that causes legal effect, changes and extermination of rights as well as obligations; the_systematic fact that can be applied repeatedly; the fact that generates and eliminates claims. But the fact in criminal procedure has not only the character of legal fact but also its own character:firstly, it affects legal proceeding; secondly, it has the nature of right or power. According to the way of realization of rights, the fact in the procedural law can be divided into three types:the facts generating rights; the facts impairing rights and the facts hindering rights. Moreover, according to the execution and the legality of the power, the fact in the procedural law can be divided into the fact claiming power and the fact proving the illegality of power. As for the procedural fact which is viewed as the object of demonstration, this paper defines4standards applied in dividing the facts in the procedural law. These standards are as follows:the statute regulating procedural facts; the influences on conviction and punishment; the influences on procedural proceedings and the influences on the human rights.The second chapter mainly studies the value of the demonstration of procedural fact which can be generally defined as pushing forward the rule of law in legal procedure. Rights, order and efficiency are three aspects of the value in ruling by law in procedural field and the different assignments of them reflect different value-orientation. This paper thinks the modern criminal procedure should be right-centered_and at the same time give consideration to order and efficiency. The demonstration of procedural facts views the design of procedural rights as pre-condition and regards the control of power as well as the punishment as means to achieve the target of protecting rights, constructing order and balancing efficiency. In order to protect rights, the demonstration of fact with the nature of dividing powers is helpful to realize the achievement of judicial review and the grant of judicial power; the demonstration of fact with the nature of impairing power can make procedural punishment realized; the demonstration of facts with the nature of generating rights can fulfill procedural claims. Referring to the value of order, the demonstration of procedural fact can form litigation order by allocating the burden of proof to resolve disputes. And the democracy in connection with spirits of human rights which are both contained in demonstration of procedural facts can promote the construction of stable and open right-oriented order. In respect of efficiency, the demonstration of procedural fact can improve judicial efficiency by preventing judicial corruption, reduce social costs by reducing misjudged cases, improve litigation efficiency by proper demonstration methods, demonstration scopes and demonstration standards.Chapter Three studies the methods applied to demonstrate facts in criminal procedure. This chaper studies the evolution of the concept of demonstration firstly and draws the conclusion that demonstration can not just be limited to trial. It is the activity that one party proves his own claims to the independent party. The objects of demonstration can be substantive facts or procedural facts presented in the form of disputes or claims. The subjects of demonstration are all the parties participating in litigation. The demonstrative activity runs through the whole litigation process. Furthermore, the most distinctive difference between demonstration in substantive law and procedure law is the way to demonstrate. The demonstrative methods in substantive law are under strict regulation but in procedural law the demonstration operates at liberty. For most of the procedural facts, the parties can prove them freely and the resources of evidence are not bounded strictly by law. Meanwhile, there is no need to obey the evidence rules strictly and the appearance of witness is not necessary. Also it is dispensable to achieve the standard of excluding all the reason doubts. However, strengbeweis should be applied to the demonstration of voluntary confession.Chapter4mainly studies the standards of proof as well as the burden of proof applied in the demonstration of facts in criminal procedure. This paper holds to the opinion that the burden of proof in the demonstration of procedure law can be divided into the burden to raise evidence and the burden to persuade. Due to the fact that legal facts in the procedural law influence the outcome of lawsuit, the proceeding of litigation as well as the human rights, the persuasive standards in procedural law is not only different from those in substantive law but also different from each other in procedure. The burden of proof in procedural fact is the combination of subjective and objective burden of proof. And it is the combination of behavior responsibility and outcome responsibility. However, there are tremendous distinctions in burden of proof between procedural fact and substantive fact. First of all, procedural fact runs through the litigation and so the burden of proof runs through the litigation. Secondly, the subject responsible for the burden of proof in procedural laws is broader than that in substantive law. Thirdly, the principles of presumption of innocence and of against self-incrimination limit effects on the distribution of the burden of proof in procedural law, although both of them are core principles in substantive law. The mode of distribution of burden of proof in the demonstration of facts in substantive law is legislation-oriented but in procedure law it is not only legislation-oriented but also needs judge’s discretion. In substantive law, the prosecutor bears burden of proof mainly, but in procedural law, the party who raises procedural claims should bear burden of proof. These subjects include but not limited to suspects, defendants, victims, prosecutors, investigating agency and court. There are three elements influence the distribution of the burden of proof: the criminal litigation and the aim of demonstration; the demonstrative capacity of the party who bears burden of proof; the consideration of facilitating the demonstration. According to the elements mentioned above, there are three principles applied in the distribution of burden of proof in the demonstration of facts in procedural law. The first principle is that the party who raises the claim demonstrates the procedure with the nature of creating rights. The second principle is that the victim should raise preliminary evidence in the procedural dispute with nature of impairing rights. The third principle is that the party who raises claim bears the burden of proof in the procedural fact with the nature of requesting authority.We think the standards applied in the demonstration of fact in substantive law can not be applied in the procedural law because the demonstration of facts with the nature of limited truth and multi-levels in procedure law are one sort of balance between procedural justice and outcome truth. There are different kinds of procedural facts in litigation and they affect defendant and the outcome of lawsuit in different degree. Therefore, different procedural facts apply different standards. Generally speaking, there are three levels existing in criterion of proof. They are the general credible demonstrative standard, proof on the balance of probabilities and standard of beyond reasonable doubt.Chapter5explores the current situation existing in China’s criminal procedure and the methods to consummate it. At the beginning, this chapter analyses the reasons causing current situation and disadvantages in the demonstration of procedural facts and describes related systems and procedural construction in the demonstration of procedural fact. In current legislative background, the demonstration of procedural fact is reflected in three different sides. And now we take facts applied in the procedure with nature of requesting authority for example, we think that there is no need to prove most of the coercive measures toward independent authority and without the participation of the counterparty, the standard of proof is misty and subject-oriented. The procedural dispute with the nature of impairing rights views rules regarding to the exclusion of evidence as main study project. We think there are several methods applied in the initiation of investigation in illegal evidence. Under background mentioned above, the defendant gets satisfied protection and the applied standards are similar to them used in substantive law. They both apply strict standards in the form of evidence as well as investigation and strict demonstration methods. Referring to the distribution of burden of proof, defendants submit the prima facie evidence and bear the burden to persuade judges. And for the procedural facts with the nature of generating rights, we think that the current law gets limited regulation over them and the verdict procedure is random. We think that there are three main causes leading to the insufficiency of the demonstration of procedural fact. The first one is the lack of the grant of judicial authority and judicial review. The second one is the insufficient procedural punishment system against offence. The last one is the lack of demonstrations in procedural facts. In order to enhance the legalization, civilization and democratization of the operation in domestic criminal procedure, it is necessary to regulate the operation of judicial procedure authority and punish the illegal procedural activities. And it is also important to perfect the procedural fact demonstration system. The methods strongly recommended to take are as follows:change the current investigation-oriented procedure system into judge-oriented system to construct judicial grant system and judicial review system; consummate the punishment system in illegal procedure to extend the scope of criminal procedure; establish the lawsuit-dismiss system as well as the stay of proceedings system. Moreover, it is necessary to perfect the rulers applied in the exclusion of illegal evidence. In the demonstration procedure, according to the character of China’s criminal procedure, the establishment of intermediate procedure of which is in judicial review court’s are recommended. This special court can hear procedural claim and judge procedural disputes. At the same time, it is essential to construct procedure-appeal system to hear procedural disputes.The last part summarizes the author’s main idea, puts forward the outlook of the demonstration of procedural fact.
Keywords/Search Tags:criminal procedural fact, strengbeweis, freibeweis, burden of proof, demonstrative method
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