Research On The Proof And Presumption Of Knowingness In The Drug Crime

The problem of knowing identification in drug crimes has long been a difficult problem in legal theory research and judicial practice.As a person's inner activity,it has its own characteristics that are difficult to prove.Increasingly concealed and constantly changing drug crimes have aggravated the problem of knowing.Identify difficulty.When the perpetrator denies knowing,the fact finder can only rely on external evidence to make inferences or presumptions.Therefore,proof and presumption have become two ways of knowingly affirming drug crimes.The problem of knowingly identifying drug crimes involves the content of substantive law and procedural law.For this reason,an overall analysis must be carried out under the concept of criminal integration.Civil law systems and common law systems both regard knowing as a constitutional element of a crime in the theory of constitution of crime.The "four elements" crime constitution theory prevailing in my country also confers the status of constitutive elements of knowing a crime.Therefore,knowing is presented as a constitutional element of a crime.This status and nature determine that the determination of knowingly must mainly adopt the method of proof,and set specific conditions for the adoption of the presumption method.Knowing whether the suspect or defendant is guilty or not is related to important matters such as personal freedom and rights protection.Therefore,according to the principle of presumption of innocence and the requirements of human rights protection,the most rigorous and accurate certification process must be passed.To identify drug crimes knowingly,it is necessary to follow the logic and rules of judicial proof,and carry out evidence inference of "evidence-inferred facts-essential facts-essentials".This is not only a requirement of procedural justice,but also an effective guarantee of substantive justice.It is the normal requirement of criminal proceedings in countries under the rule of law to recognize knowingly passing proof.However,when it is difficult or impossible to prove,whether to strictly implement the principle of presumption of innocence and the principle of no suspected guilt,or to seek an alternative method of proof,is It is an examination question in the process of the rule of law and the progress of judicial civilization in all countries in the world.Choosing the former may have the negative effects of indulging crimes,making it "powerless" or "powerless" in the face of new crimes such as drug crimes and telecommunications fraud;choosing the latter may violate the statutory crimes and punishments,and may not force self-incrimination,etc.Principles,increase the risk of false fact finding or unjust,false,and wrong cases.In the long-term judicial practice,in order to overcome the practical problems of the difficulty of proof,countries around the world have explored methods including changing the object of proof,transferring the burden of proof,and lowering the standard of evidence.However,these methods are highly similar to the presumption rules,and they are actually presumption rules.Therefore,the expedient solution to the difficulty of knowing to prove is gradually solidified into the application of presumption rules.Therefore,the determination of knowingly in drug crime cases often chooses the presumption method,and this practice has also been legislatively confirmed in many countries.However,with the gradual increase in human rights protection awareness in recent years,this traditional approach has been fiercely criticized and challenged.An important question needs to be answered urgently,that is,under what circumstances can the proof of knowing be transformed into the presumption of knowing,that is to say,how to grasp the conditions for the application of the presumption of knowing in order to form an effective restriction on it.Based on the characteristics of presumptions such as temporaryity,statutory,transferability and finality,the transformation of knowing proof into knowing presumption must be an extremely special situation and must meet stringent conditions.The purpose of transforming proof into presumption is to solve the difficulty of proof.Therefore,the difficulty of proof must be a prerequisite for the application of the presumption;in terms of purpose conditions,the application of the presumption is to achieve the unified effect of the referee;of course,not all matters should be set up.The presumption requires more mature experience accumulation and practical verification.The legal relationship created by the presumption should be stable and conform to the operating rules and methods of normal society;the presumption is not a logical relationship between two facts,but depends on the basis of legislation.Facts and presumptive facts are grafted,so the use of presumptives must comply with statutory requirements.In the determination of essential facts such as knowing,presumption can only be an auxiliary means,and it should not and cannot replace proof,and naturally it cannot achieve the validity and function of proof.In essence,the presumption is the interruption of the logical proof process and a temporary assumption.Just as the "bubble theory" advocated by the American evidence law master Thayer,the presumption merely exempts or transfers the burden of proof of the assumed facts,once the other party Submission of evidence to the contrary will lead to a "bubble explosion",the effect of the presumption will disappear,and the facts of the presumption will be overturned immediately.This reflects the temporary nature of the presumption.Therefore,it is necessary to clearly emphasize the cautious use of the presumption of knowledge and set the most stringent presumption.Condition limits and reduce the application of the presumption of knowledge,and bring the use of the presumption of knowledge into the track of the rule of law.The positioning of knowing presumptions in different jurisdictions,at different stages,and in different cases,as well as the changes in the attitudes of countries to presumptions in dealing with new types of crimes,all remind us that we should "treat presumptions seriously and prudently." In judicial practice,although knowing evidence in drug crime cases is allowed to be transformed into a presumption under certain circumstances,this does not mean that the rationality and legitimacy of the presumption are of course recognized.Presumption is essentially different from proof.Presumption is not the subordinate concept of proof,but the opposite concept of proof.The presumption is not proof,but the interruption of the proof process.The mechanism and function of presumption determine that it cannot carry the important task of criminal proof.For this reason,the presumption of essential facts cannot be an exception to the principles of presumption of innocence and no forced self-incrimination.In fact,although presumptions are widespread in the legislation and jurisprudence of many countries,the calls for restricting presumptions and even abolishing presumptions are becoming stronger and stronger.The relevant precedents of the European Court of Human Rights highlight the strict conditions for the application of presumptions and reaffirm the priority of human rights protection.In the context of the reality that human rights protection is deeply rooted in the hearts of the people,the presumption of knowledge has been changed from the presumption of knowing to be used with caution,and then the presumption of knowing is banned.Knowingly presumption is to promote rationality,and it is also the proper meaning of the construction of the rule of law and a higher level of judicial civilization.Under the guidance of the above-mentioned concepts,the practical practice of applying presumptions in the subjective and knowing identification process of drug crimes in my country should be criticized to a certain extent.At present,a large number of presumptions have been formulated and issued by relevant departments in the form of regulatory documents.In the process of handling drug cases,the anti-drug practice department is also willing and actively advocating the use of presumptions to identify suspects subjectively and clearly,and the attitude towards the presumption of knowledge is conservative.The trend towards optimism and from passive to active has already formed the phenomenon of knowingly presumption being abused.This trend cannot but be said to be a manifestation of the regression of judicial civilization.In reality,the presumption rules created in the process of knowingly identifying drug crimes in my country follow the legislative model of "enumerating circumstances +enumerating provisions + rebuttal clauses",but there are incomplete enumeration,misuse of enumeration clauses,insufficient effectiveness and unclear definitions of refutation clauses.As a result,there are some problems such as remand and retrial due to the application of presumptions,and even lead to some unjust,false,and wrong drug cases.In terms of knowing presumptions,there is a certain tension between legal theory and anti-drug practice.For this reason,the dialogue between theory and practice is particularly important in the process of drug crime management.This is also the result of the continuous improvement of criminal presumption and the adjustment of the concept of drug crime management.The route must be taken.As a typical international crime,the governance concept of drug crime should have an international perspective.As a country that has suffered from drug crimes,my country has naturally been affected by historical,economic,social,political and other factors in combating drug crimes.However,the priority of human rights protection and the universality of the presumption of innocence require the treatment of drug crimes.In the process,the protection of rights and the principle of rule of law should be further highlighted.Therefore,as to whether the knowing presumption must be applied in drug crime cases,the answer is no.The innate factors of lack of evidence and difficulty in proving drug crimes cannot be the reason for the presumption that it is universally applicable or even abused.Under the concept of strictly restricting the presumption conditions,drug crime management should be transformed from extensive to refined,and from "sports-style cracking" to "scientific governance",which in turn forces investigative agencies to follow the rule of law and improve their ability to obtain evidence.Further establish the awareness of evidence and improve the methods and means of knowing determination;in addition,the governance system of drug crimes in my country must also be adjusted accordingly.In the process of fact determination,the logical main line of the relevant rules must be played,and the probabilistic nature of fact determination must be followed.Judicial laws,scientific analysis and treatment of unjust,false and wrong cases in drug crimes;a subjective burden of proof system with the knowledge of drug crimes as the main content should also be established as soon as possible,and the technical means of knowingly identifying drug crimes should be further transformed into the rule of law.There is a certain deviation between the presumption of knowledge and the rule of law governance of drug crimes.Therefore,using presumptions carefully is the only way to improve the modernization of the drug governance system and governance capabilities,and is also the inevitable choice for the construction of the rule of law in China and the progress of judicial civilization.