On The Proof Of Justifiable Defense

At present,with regard to the problems of low recognition rate of justifiable defense in judicial practice and the tendency of "results-only theory",the theoretical circle focuses more on the exploration of the doctrine of the interpretation and application of criminal law norms.The justification of the final defense during the court hearing is not only dependent on the interpretation and application of the criminal law normative theory,but also more importantly depends on whether the facts of the legitimate defense case can be effectively proved.Proof of justifiable defense is a judicial argumentation process that takes the specific fact of justifiable defense as a proposition during the trial process.It can be said that it is a judicial practice that ultimately recognizes the facts of justifiable defense in substantive law.In the process of proof,the main body of the proof proves whether or not the proper defense behavior actually exists according to certain proof logic and proof rules,by revealing and submitting various evidence materials in the court trial,in order to persuade the judge to confirm the authenticity of the fair defense facts.In the criminal procedure,the proof of proper defense should have an independent status that is different from the factual proof of the elements of the same crime,and has its own unique proof logic and proof method.This is caused by the physical attributes and defense attributes of legitimate defense and It is determined jointly by the illegal class attributes in the class crime theory system.The class criminal theory system is not only the model and standard for judging whether an act constitutes a crime,but also the "guidance image" of the criminal procedure certification.Therefore,the establishment of the proper defense certification system also cannot be separated from the specific guidance of the class criminal theory system.At present,the theoretical community has not formed a systematic theoretical framework for the proof of the reason for the special illegal obstruction of legitimate defense,and the certification of legitimate defense involves the fusion of the proof theory of evidence law and the many theoretical disputes of legitimate defense itself.And independent research value of the operation of procedural law.In this paper,through several typical cases of legitimate defense practice in recent years,this paper triggers a rethinking of the predicament of current legitimate defense cases.Different from the entity identification perspective of criminal law interpretation theory,this article focuses on breaking the practical predicament of the case of legitimate defense from the perspective of judicial proof in the process of criminal litigation,highlighting that the current certification of legitimate defense is facing the lack of criminal theory system guidance,in judicial practice.Theoretical issues such as lack of positioning and lack of detailed guidelines.In order to solve the problem of proof of justifiable defense,this article will proceed from the ontological inspection of the justified defense system,and form a complete justified defense certification system with the class crime theory system as the proof guiding theory.This part takes the certification object,the certification responsibility,and the certification standard as the backbone of the system,and is guided by the basic concepts and certification methods of the justified defense certification.At the same time,we will conduct a micro-discussion on the difficult issues concerning the justification of defense certification in judicial practice,including the specific proof analysis and resolution of the facts of the defense cause,defense awareness,and defense limitation disputes.Specifically,the second chapter focuses on the investigation of the ontological issues of the legitimate defense system,including the concepts,characteristics,historical investigation,and practical significance of legitimate defense,especially the relevant theoretical analysis of justification.This part of the content is the basic theoretical explanation of the specific defense object of legitimate defense,laying the physical foundation of the legitimate defense certification system.Through the discussion of the representative theory of the justification of legitimate defense,this paper proposes that the justification of legitimate defense should return to the dualism that combines the principle of personal preservation and the principle of legal confirmation.The realization of the standardization of legal order.This theory provides theoretical premises for solving the concrete proof of the facts of legitimate defense elements and for constructing the distribution rules of proof responsibility.The third chapter firstly,through comparing the position of proper defense in the continental criminal theory system,the Anglo-American criminal theory system and China's four-element criminal theory system,and comprehensively considering from the perspectives of criminal procedure proof,criminal law doctrine and criminal law functionalism,we propose The criminal theory system that guides the activities of justifiable defense certification should be a class crime theory system.From the perspective of judicial certification,the class crime theory system has a class system that distinguishes and evaluates the constitutive elements of the conduct and illegality,which can help to form an independent proof stage of the legitimate defense and lead the The proof of the equivalence of the constituent elements forms an effective confrontation between the front and the back,which enables the defendant to form a three-dimensional model of legitimate defense and defense according to the hierarchy,thus obtaining a larger defense space.The special attributes of class crime,such as class,system and functionality,provide a clear and effective mode of thinking for the realization of the justification of defense,and it will also frame the proof object of the just defense,the distribution of proof responsibilities and the establishment of proof standards Provide a solid theoretical basis for the entity.The fourth chapter is the concrete construction of the justified defense certification system.First,it is a brief description of the basic concepts of proof of justification and the composition of the proof;second,it is the discussion and selection of the method of proof of justification,that is,the method of proof of justification should be guided by the methodological principles of judicial proof to form a specific justification hierarchical and systematic proof of defense.And taking into account the necessary nature of the various elements of legitimate defense,the economic factors of litigation,and the burden mechanism of proof responsibility,the free certification method has room and possibility to be applied in the certification of legitimate defense;furthermore,it is a certification system The specific construction of the main part includes the framing of certification objects,the distribution rules of certification responsibilities,and the establishment of certification standards.This section discusses the substantive content that will directly relate to how to prove the proper defense and how to prove the requirements.The framing of the scope of the certification object is the starting point of the legitimate defense certification,which can ensure that the entire certification activity is "targeted".This part proposes to change the research path of framing the scope of the object of proof,take the form of the essential element fact theory as the basis,and model the elements of the criminal law provisions as the model to clarify the range of element facts required for the justification of the defensive proof,so as to realize the abstract The transition of the proof object to the specific proof object.The problem of proof responsibility should distinguish between objective proof responsibility and subjective proof responsibility.The objective proof responsibility for legitimate defense is allocated to the defendant,that is,the defendant bears the adverse risks when the truth of the legitimate defense is unclear.As for the burden of proof,in principle,the defender only bears the initial burden of proof for the cause of legitimate defense to the point where disputes are formed,and then the subjective burden of proof is transferred to the prosecutor,who needs to bear the burden of proving that there is no illegal obstruction responsibility.The standard of proof for justifiable defense should be based on the system of class crime theory,combined with the proof responsibility and the object of proof of justified defense.First,the standard of proof when the defendant assumes the initial burden of proof only needs to reach the level of forming reasonable doubts and forming "disputes";secondly,the prosecutor is then responsible for proofing the exclusion of the existence of legitimate defense reasons,and the standard of proof must reach the exclusion of all Reasonable suspicion;Finally,the defendant continues to provide evidence to prove the establishment of legitimate defense at the same time as the prosecution's step of excluding the justifiable cause of proof.That is,the certification standard finally reached by the defendant is a highly probable proof standard.The fifth chapter is to conduct a micro-discussion on the most controversial establishment requirements in legitimate defense through practical investigation of specific cases,including the causes of defense,defense awareness and defense limits.Proof of justifiable defense needs to be refined to the proof dimension of each establishment requirement,in order to achieve the purpose of quickly finding the facts of key requirements in a complicated case.For the specific proof of the cause of defense,it is necessary to distinguish between two steps: "proof of the existence of unlawful violations" and "proof of the time of " ongoing " defense." For the proof of defense consciousness,it is necessary to consider the mixed characteristics of the difficulty of subjective consciousness proof and the defense consciousness itself.It is necessary to use the concept of general defense consciousness,and to strictly test the proof of the defender's confession and defense and related witness testimony,Specifically to prove in two steps: "direct factual proof + verbal reinforcement" and "indirect objective facts mutual verification +proof to be proved".For the proof of the defense limit,it is necessary to use the reference of illegal violations to judge the "limit value",and select the necessary theory based on the subjective defense needs of the defender and make a comprehensive judgment.Specifically,the principle of direct trial and the principle of verbal trial should be strictly followed,and strict verification procedures should be carried out on verbal evidence and physical evidence linked to the necessity of defense limits,so as to ensure the mutual verifiability of the evidence materials.