Study On Criminal Presumption

Criminal presumption increasingly leads to the comprehensive interests of the Theorists and the Practitioners. Seeming as a small question, the presumption not only is close to the elements of crime, but also intertwined with the suit model and burden of prove. Because of that, the presumption is a question of substantive law, of procedural law as well. Current research on the presumption is not so abundant and deep as other theories of prove, and misreading or misusing arise frequently. It is meaningful to extant the method of determining the crime and strike the crime in time so as to prevent criminals escaping the criminal punishment if the presumption is used reasonably. It is not only difficult to indicate the concept and mechanism of the presumption in theory, but put it into the litigation practice because of confusing and misusing. As for it, the article attempts to discuss this question so as to contribute to the definition, regulation and application of the presumption.In the first part, the article begin from the concept of the presumption, then define the criminal presumption on the basis of determining the connotation and scope by comparative analysis of the research of domestic and foreign scholars, and then expurgates the concept of presumption, inference, fiction and other diffusive concepts. The categories of the presumption are different between the common law and the civil law. Influencing by the civil law , the legal presumption and fact presumption are the basic category of the presumption, and they are distinguished from each other in nature, scope, argument, the effect of prove, ect.In the second part, the article discuss the principal mechanism of the presumption form the aspects of composition, attribute, function and effect. The criminal presumption must abide by three conditions ,i.e, the basic fact and the presumption fact of the evidence form, and the normal relationship between them. Normative is the basic nature of criminal presumption, and three functions of criminal presumption includes helping charge function, policy realization function and direct determination of crime. The effectiveness of the criminal presumption is manifested mainly on the impact of the burden of proof to both defense and prosecution, the effects of the legal presumption and the fact presumption on the burden of proof are different.In the third part, the article describes the application of the presumption of criminal and regulation. Firstly, the article investigates the legislations of presumption outside our country, and points out that use of the criminal presumption should follow the three principles, namely principles of law principle of necessity, and the principle of allowing the accused to refute. In order to avoid expansion of the presumption inappropriately, it should be presumed to be necessary to limit the criminal presumption, that is, it should be limited to the fact of the elements constituting a crime, and to protect defendant's right of rebuttal from procedural safeguards.