Research On The Realization Process Of Criminal Proof Standard

The criminal standard of proof is one of the fundamental issues of proof in litigation and plays an important role in the proceedings as the "terminal point" of criminal proceedings.The amendments to the Criminal Procedure Law in 2012 made new provisions on the standard of proof,establishing a unique expression of the "subjective and objective" standard of proof in criminal matters.Although China’s "subjective and objective" standard of proof has been established for more than ten years,the subjective standard of proof has not received widespread attention in practice,resulting in the rule being reduced to an accessory to corroboration and unable to play its proper role as a legal norm.The root of the problem lies in the fact that previous studies have focused on the standard of proof itself in the sense of results,ignoring the fact that the standard of proof is not achieved overnight,but in an organic process,influenced by many elements such as the evidence base and the method of analysis of the evidence.How to get out of the strange circle of the statutory standard of proof,and how to extract and refine the many elements that affect the process of realizing the standard of proof,so that they can play their respective normative effectiveness before and after serving for the determination of facts,is the focus of the current research on the standard of proof,which needs to be analyzed and studied in depth and in detail.Based on this,this article takes the process of realising the criminal standard of proof as the object of study,and uses a combination of empirical research methods,historical analysis methods and comparative research methods to explore the principles of the criminal standard of proof process and its perfection,with the fact formation process as the main line.The thesis consists of six chapters and covers the following main areas.Chapter 1 is the presentation of the process theory: a new departure in the study of criminal standards of proof.The standard of criminal proof has always been a rather abstract and controversial issue in the law of evidence,and there are three positions on the standard of criminal proof: objective,subjective and "subjective-objective".The existing legislation adopts the "subjective-objective" model,but the "subjectiveobjective" standard suffers from a focus on the outcome of the factual findings,ignoring the dynamic process of realisation of the standard of proof,a mix of subjective and objective elements that obscures the essence of the standard of proof,and a lack of clarity in the positioning of each element,making it difficult to take care of each element.The introduction of a processual perspective can help to activate the influential elements of the standard of proof and to achieve an integrated study of the standard of proof;to standardise each objective element and to clarify its mechanism of action on the standard of proof;to highlight the characteristics of the standard of proof itself and to avoid the mechanisation of the determination of facts.Under the process theory perspective,the objective elements affecting the criminal standard of proof and the subjective standard of proof each have their own role to play.The standard of proof in the true sense of the word points to the subjective conviction of the adjudicator,and its realisation is supported by the objective influential elements,and the organic unity and orderly advancement between the elements enables the institutional function of the standard of proof to be realised.Chapter 2 deals with the rationale for the process of achieving the criminal standard of proof.The process of realizing the standard of criminal proof should be oriented towards facts.Regarding the study of facts,there are two theories in the study of criminal procedure law,one is the theory of fact discovery and the other is the theory of fact construction,while the process theory should take the theory of fact construction as the basic point and take the interaction between subjects as the core.Facts are the mainstay of the process of achieving proof criteria,and the process of achieving proof criteria is also a dynamic process of fact formation.The specific fact-oriented requirements of the process of realising the criminal standard of proof include four parts:the evidential basis is the root of the facts,which are proved by the evidence;the method of evidential analysis is concerned with the path of evidential reasoning and is the bridge to the facts;the evaluation of the facts is the adjudicator’s perception of the facts;and the litigation process is the external guarantee of the formation of the facts.Chapter 3 deals with the evidential basis for the process of achieving the criminal standard of proof.Evidence is the basis for determining the facts of a case,and the requirements of the principle of evidentiary adjudication connote the laying of the evidential foundation: facts consist of evidence,and good evidence affects the quality and effect of facts;evidence can also be used to support or refute arguments and to help the adjudicator form factual conclusions.The presentation of evidence by the prosecution is the process of building the evidential basis,which is inseparable from the burden of proof.However,in judicial practice,the facts and evidence in favour of the defendant are "not presented when presented",the link between the prosecution’s evidentiary process and the factual claims is not close,and it is common to see a weak system of alleged facts and a lack of evidence chain.Therefore,the prosecution’s obligation to be "objective and impartial" should be implemented,the prosecution’s ability to interpret the facts on the basis of evidence should be enhanced,and the prosecution’s thinking on the reverse side of the doubt should be strengthened to promote the integrity of the evidence chain.Defence cross-examination is a refinement of the evidential base,but empirical studies have found that the defence is less likely to present evidence of affirmative defences to dissipate the alleged facts,that it is more difficult to apply for the exclusion of defence evidence,and that defence submissions are more general,making it difficult to weaken the system of alleged facts.Therefore,the right of counsel to investigate and obtain evidence should be guaranteed,the defence should be prompted to present evidence,the adjudicator should give weight to the defence’s submissions and review them in a timely manner,and the defence’s submissions should be as clear and relevant as possible.Ultimately,the adjudicator should be the gatekeeper of the evidential basis and examine the eligibility of the evidence in order to delineate the factual basis and safeguard the accuracy and legitimacy of the factual findings.However,in practice,some evidence is "not entered" and "not excluded",and the eligibility of evidence is mixed with its probative value.For this reason,the evidence base for factual findings should be expanded,the rules of evidence should be implemented,and the examination of evidentiary qualifications should be appropriately separated from the assessment of probative value.Chapter 4 deals with the methods of analysis of evidence in the process of achieving the criminal standard of proof.The analytical approach to evidence plays a major role in bridging the gap between evidence and fact and facilitating the discovery of doubtful facts in the process of achieving the standard of proof.There is a distinction between atomistic and holistic processes of evidence analysis,where atomistic evidence analysis facilitates the discovery of doubt,and holistic evidence analysis facilitates the construction of facts,where the holistic cognitive logic based on atomism boils down to the realization of a subjective standard of proof.Corroboration is currently the main method of evidence analysis in China,but in practice the rigid application of corroboration methods circumvents the rules of thumb and makes it difficult to achieve the adequacy and dynamism of judicial proof in a linear inference.The three mainstream theoretical approaches to evidence analysis-the argumentative under atomism,the probabilistic approach and the storytelling under holism-all have their own strengths and weaknesses.The essence of the corroborative approach,along with the argumentative,storytelling and probabilistic approaches,is to find the best explanatory process,and each approach is compatible with the other.The use of multiple evidence analysis can highlight the logic of cognition from the atom to the whole,effectively alleviate the phenomenon of objective proof,promote the comprehensiveness of evidentiary information,facilitate dialogical communication among litigants,and also provide comprehensive support for the adjudicator’s mental judgment.Chapter 5 deals with the factual evaluation of the achievement of the criminal standard of proof.The evaluation of facts is the process of cognition of facts by the adjudicator.From the perspective of current judicial practice,there are some "strange" phenomena in the process of evaluating the facts of the adjudicator: on the one hand,the objectification of judicial proof inhibits the teleological nature of the adjudicator’s factual evaluation,and even excessively restricts and limits the adjudicator’s subjective cognition;on the other hand,the adjudicator’s teleological evidence suffers from insufficient restraint mechanisms,and the process of evaluating the facts of the adjudicator is irrational.This problem of excessive objectivity in the evaluation of facts has already resulted in simplistic generalizations of evidence and reasoning,formal adjudication and rigidity in the determination of facts.Therefore,it is necessary to establish the thinking of "recognizing the subjective nature of factual evaluation first,and then establishing a mechanism of restraint and protection on the basis of mental evidence",so as to loosen the ties for the adjudicator’s factual determination.Its external binding guarantee mechanism is mainly manifested in the implementation of objective elements affecting the achievement of the standard of proof,so that the factual evaluation activities involving the subjective beliefs of the adjudicator are rational and justified.The internal constraints are mainly in the form of rules of thumb,ethics and inner convictions.Starting from the heart,the implementation of the standard of proof beyond reasonable doubt in China requires a breakthrough from the empirical world of "common sense and common sense" to discover reasonable doubts in the facts and seek inner conviction of the facts.Chapter 6 deals with the process of achieving the standard of proof in criminal proceedings.The litigation process provides an independent procedural space for the judgement of the standard of proof,promotes the guarantee of rights in the process of realising the standard of proof,and safeguards the legality and legitimacy of the process of realising the standard of proof.The pre-court conference is an important procedural basis for building the evidence base;adequate cross-examination and argument between the prosecution and the defence is a guarantee for the effective use of multiple methods of evidence analysis;the direct verbal hearing is an external procedural guarantee for the adjudicator’s factual evaluation;and reasoning is an effective way to regulate the arbitrariness of factual judgments.However,in judicial practice,the procedural safeguards required to achieve the standard of proof are not as satisfactory as they could be.The pre-trial conference is ineffective in presenting and regulating evidence,there is a lack of rational participation and communication between the prosecution,the defence and the trial,and the process of restoring the results of the adjudicator’s argumentation needs to be improved.In the future,the focus of procedural improvements in the process of realising the standard of proof will be on the materialisation of the trial,making the pre-trial conference system effective through due process,promoting rational communication and communication between the litigants,and focusing on the process of the adjudicator’s argumentation of the outcome,so that the standard of proof judgement becomes "visible justice" and "articulated justice".