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Study On Rules Of Criminal Procedure Presumption And Its Application

Posted on:2006-06-03Degree:MasterType:Thesis
Country:ChinaCandidate:Y ShenFull Text:PDF
GTID:2166360185953469Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Abstract: The judges would definitely apply presumption, especially presumptionof fact, in criminal procedure. However, the judge's "rendering of the judgment"required by the presumption of fact is in contradiction with China's criminalprocedure evidence standards as "seeking truth from facts". With the suspicion to thecurrent criminal procedure evidence standards in China, we have studied the literatureabout the principles for human beings to identify the objective world by theirsubjective judgment, and we find that to identify such facts as the requisites inconstituting an offence, the defendant's subjective element in particular, is incompliance with the objective principle for human beings to understand the world andalso is the effective way to solve some difficult problems in connection withconviction. But it is definite that applicable presumption shall be subject to somelimitations. With the reference to the western countries' experience, we can find thatboth countries with Anglo-American Common Tradition and those with ContinentalLaw would apply the method of presumption to identify the fact and both of thempossess the corresponding rules, although the rules of evidence in countries withdifferent law system are different. It is due to the fact that presumption of fact has notbeen officially acknowledged in the field of criminal procedure in China and that nocorresponding rules are duly enacted that the system of judge's "rendering ofjudgment" is abused. The author tries to establish a framework for criminalpresumption rules and study the typical cases to which the presumption is applicableas well as its problems in the following eight parts:PartⅠ: Forewo It briefly describes the legislation witl regard to criminalprocedure presumption in China and other countries and the fact that the presumption is gaining more and more attention in the field of procedural law in China. The Part isthe basis of the successive paragraphs.PartⅡ: Concept of Presumption and Its Value in Procedure. Firstly, it illustratesthe basic concept of presumption and then makes a comparison between presumptionand other similar concepts for the readers to better understand the basic concept. ThisPart is the footstone for the whole paper. It would be of geat help to understand therules of criminal procedure presumption and its applications discussed hereinafter ifthe concept and its difference from other concepts may be well understood.PartⅢ: Analysis of Current Status of Presumption in Criminal Judicial Practice ofChina. Firstly, it indicates the objective situation of presumption in the criminalprocedure of China by enumerating the situation of presumption of law andpresumption of fact within China. Secondly, it analyzes the inevitability of suchcondition from the perspective of Legal Theory.PartⅣ: Investigation and Comparison of Presumption Rules in Other CountriesThrough the investigation and comparison of the reform of criminal evidencesystem and relevant presumption rules between countries with Continental Law andAnglo-American Common Tradition and Tai Wan district, we can find that althoughthe development of their criminal procedure evidence rules are different, they aregoing with the same trends; that is, presumption is permitted in criminal procedure inall countries and all countries have formulated the corresponding rules. We shall referto the precious experience of the above-mentioned countries and district.PartⅤ: Study on Problems Required for Attention about Rules of ApplicableCriminal Procedure Presumption.Firstly, it compares the difference betweenpresumption of law and presumption of fact, and criminal presumption and civilpresumption for the purpose to reveal the characteristics of criminal procedurepresumption. Secondly, it emphasizes the premise and condition to apply the rules ofcriminal procedure presumption to indicate the author's view that presumption of factshall be used cautiously in the course of criminal procedure.Then analyzes in detailssuch issues as to which requisites presumption is applicable, to which it is notapplicable, how to apply the presumption and what problems exist. The author alsodeepens such discussion by analyzing particular examples with the purpose to offerthe different opinions.PartⅥ: Legislative Conception on Formulation of Chinese Criminal ProcedurePresumption Rules.Firstly, it discusses the significance of establishing Chinese Criminal Procedure Presumption Rules. Secondly, it indicates the guidelines andtheory basis for such formulation. Thirdly, it expounds in details Chinese CriminalProcedure Presumption Rules.PartⅦ: Conclusion...
Keywords/Search Tags:Presumption, Presumption of Law, Presumption of Fact, Basic Fact
PDF Full Text Request
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