An Analysis Of Burden Of Proof Of The Accused

Burden of proof of the accused is the exception of the general principle ofallocating burden of proof in the criminal laws. It reflects the weighing andchoosing between finding the fact and protecting human rights, and is relatedclosely with the categories in the law science of the procedure and the lawscience of the evidence. At the same time, the burden of proof of the accusedin the special situations exists in the provisions in various countries. So,burden of proof of the accused is widespread exception, which has to be regardseriously. The purpose of this thesis is to try to analyze the progress and thebasis of construction of burden of proof of the accused on the foundations oftheories and provisions in various countries.This thesis is composed of five chapters. Try to sketch it as follows:Chapter one is limit of burden of proof. Limits of burden of proof includethe limits of the subject of burden of proof, the object of burden of proof, andthe layers of burden of proof. The subject of burden of proof is the parties insuit, and, in the criminal procedure (the typical one is public charge), is theprosecutor and the defendant and his counsel, but does not conclude the judgeand the police as the assistant of the prosecutor. The object of the burden ofproof is the substantial facts and procedural facts in issue. To the theory ofstratification in the burden of proof, it should accept and refer to both thetheory of burden of production and persuasion in the Anglo-American legalsystem and the theory of the subjective burden of proof and the objectiveburden of proof in the Continental legal system.Chapter two is the provisions of burden of proof of the accused in variouscountries. According to the difference of the models of the procedure, dividethe chapter to three sections. The first section is the provisions in theAnglo-American legal system. There are the clauses and precedents of burdenof proof of the accused in America, Britain, Canada and Hong Kong. Sectiontwo is the provisions in the Continental legal system. There are clausesdispersed of burden of proof of the accused in France, Germany, and Taiwan.Section three is the provisions in Japan. Laws in Japan provide burden ofproof of the accused, and theories in Japan admit it, too.Chapter three is the analysis of burden of proof of the accused fromburden of producing evidence to burden of persuasion. There are differencesof values and instructions between the Anglo-American legal system and theContinental legal system. And the understanding and the explanation to burdenof proof is different, too. Comparatively, the theory of burden of proof inAnglo-American legal system is better to describe the operational states ofburden of proof in the procedure, and the theory in the Continental legalsystem does well in explaining the function and meaning of the burden ofproof. So, choose the theory of the burden of proof in the Anglo-Americanlegal system as the theoretical tools. The progress of burden of proof of theaccused in Anglo-American system is that providing the affirmative defenses,producing evidences to come to the lower standard that is required by thejudge, at last forming the issue that can be rendered the trial; under a fewsituations, the accused takes both burden of producing evidence and burden ofpersuasion, that is, to persuade the fact finders to believe to reach the statutoryproof standard. Although the differences of the system of burden of proof andthe discrepancies of models and values of procedure between the Continentallegal system and the Anglo-American legal system exist, the progress isanalogous, and only details have some discrepancies, such as the range ofjudge's power, the degree of burden of proof of the accused and so on. As faras the current situations of Chinese criminal procedure are concerned, it isnecessary to construct theoretical system and the specific rules of progress onburden of proof drawing support from the conception system about'provisional burden', 'burden of producing evidence', and 'burden ofpersuasion', and to introduce the defendant-oriented investigating obligationsfor the judge in the Continental legal system and Japanese law, in order tomake burden of producing evidence of the accused provided inAnglo-American legal system to be alleviated.Chapter four is foundations and conditions of constructing burden ofproof of the accused. As far as the nature of burden of proof of the accused isconcerned, burden of producing evidence of the accused is a burden but not aright, and burden of persuasion of the accused is, if it has been provided in thestatutes, the legal risk allocated when true and false is unidentified. As far asthe relations between burden of proof of the accused and the principle of thepresumption of innocence are concerned, the accused bearing burden of proofwould not violate the principle of presumption of innocence and lead topresumption of guilt. The establishment of burden of proof of the accused isrestricted and guided by the principle of presumption of innocence, and isunanimous with the spirit of the presumption of innocence. In the criminalprocedure, the prosecutor should bear more burdens of proof, and burden ofproof of the accused should be limited strictly. The limiting conditions toconstruct burden of proof of the accused are that: it should be provided by law;it should construct the burden of producing evidence mainly, construct less ornot construct the burden of persuasion, and have more strict conditions whenconstruct the burden of persuasion; the order in trial is that the prosecutorbears the burden of proof first, then the defendant does, and the prosecutorshoulders final burden of proof to the whole case always, at the same time thestandard of unloading burden of the defendant should be lower than theprosecutor; only if the prosecutor is difficult to or can not get the evidencebut the defendant is convenient to provide, and through the balancing of all...