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A New Study On Conception Of Proving In Criminal Litigation

Posted on:2005-02-22Degree:MasterType:Thesis
Country:ChinaCandidate:J SunFull Text:PDF
GTID:2156360122999551Subject:Procedural Law
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Although the concept of proving in criminal litigation is one of the important categories in evidential science of law, the law scholars pay little attention to it .For a long time both the common theory and the minority of the scholars study it from the substantive law. Thus, not only the study of proving in criminal litigation isn't harmonious with the whole study of the procedural justice, procedural judgment, procedural defense appearing in recent years ,but also it breaks away from the practice of criminal legislation and loses its ability of conversation with the practice . This prevents the theory's development in depth, at the same time it makes the proof law science lose due theoretical character .So following the lawsuit regulation the author pays attention to the implementation of procedural justice and emphasizes the study of pre-trial proving in order to avoid the insufficiency and to deepen the study of the basic problem about proving in criminal litigation .The whole essay is written in four parts.Part one, the present research situation on the concept of proving in criminal litigation. From the perspective of recognizing proving I summarize the concept of proving in criminal litigation as " the theory of fact- finding " and "the theory on responsibility- bearing ". The theory on fact-finding refers to all the kinds of views and advocations that regard proving as the police security men's judicial authority's activity about fact-finding in the course of comprehending the concept of proving, from the perspective of the whole suit procedure .For a long time the concept of proving presupposes the traditional epistemology in theory, although the traditional epistemology is revised by the scholars to a certain extent and the controversy between the theory on objective truth and the theory on legal truth appears because they have no substantive difference in the comprehension of the concept of proving .The theory on fact-bearing refers to the advocation that during the comprehension of the concept of proving ,from the perspective of tribunal trying ,on the basis of the bearing on objective proving responsibility, regards proving as the demonstrative activity of accusing part and debating part .It begins with the introspection of traditional lawsuit epistemology , emphasizing the relativity of traditional proving ,and makes the unity of opposites between the epistemology of dialectical materialism the theory of procedural justice as the foundation of proof law science studying .Part two, the introspection of the concept of proving in criminal litigation. Insufficience of the theory on fact –finding is as following: First, all the litigation course is considered as proving course. This causes the melting of the concept of proving ; Second , the situation between the accused part and the debating part is out-of-balance. Judges finding facts appear more inclination of prosecuting, and this can't keep objectivity and neutrality; Third, ignoring the defender's identification function, has the inclination of laying stress on attacking instead of protecting. The out-breaking of Theory on responsibility-bearing is to lie in distincting lawsuit subject's fuction, forming "the principle of trial centre ", promoting the defendant's status as subject and protecting his interests. Because of lacing the concern about the existing problem before the trying, the theory of responsibility-bearing has inclination of simplifying the complicated problems, and it also has the suspicion of stressing on substance and despising procedure.Part three, the reconstruction of the concept of proving . There are three theoretical prerequisites: First, the lawsuit cognition is explained scientifically. The lawsuit cognition should reflect the regulation of lawsuit , lawsuit cognition decides the range of lawsuit proving and lawsuit proving testifies lawsuit cognition. This decides that it is not scientific for the trial judge to find out the case in theory finally and it is harmful to instruct practice . Oppositely it...
Keywords/Search Tags:Conception
PDF Full Text Request
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