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Presumption Of Fault In Criminal Law

Posted on:2007-09-02Degree:MasterType:Thesis
Country:ChinaCandidate:Z YangFull Text:PDF
GTID:2166360212458004Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Presumption of fault is one special form of presumption and development of Culpability Theory in Criminal Law. The essence of Fault Presumption is to change the traditional, common way to prove the criminal fact directly by evidence. If there is no direct evidence or no enough evidence to prove the subjective fact, the conclusion about subjective fact can be reached by reasoning the normal relations between basic facts and objective facts. The application of Fault Presumption not only strengthens the punishment of crime and releases the evidential burden of the prosecution office, but also benefits the social identity of criminal judge and application of criminal policy to push forward judicial procedures as well as assure the justice and efficiency of judicature. According to the world trend of government legislation and the domestic development of judicial practice, Fault Presumption has its own market. But the character of Fault Presumption itself makes it easy to violate the defendant's rights. It is necessary to construct related security system to lower the risk of misuse. On one hand, the application conditions of Fault Presumption shall be strictly defined; on the other hand, a perfect security system shall be formed by taking security methods in subjects (promote the qualification of judgers) and rights (strengthen retort right of defendant) to assure the proper application of Fault Presumption in practice.There have been studies about Fault Presumption both in theory and practice. But according to the present study about Fault Presumption, they all focus on the constructive fault in civil and administrative proceedings. Because it is common believed that constructive fault plays more important role in civil and administrative proceedings than criminal proceedings, there is less attention and less study to Fault Presumption in criminal law. According to the present studies about Fault Presumption, there are no systemic and completed studies about it. This article is only an attempt for the study about Fault Presumption. There are three parts in this article:The first part focuses on the introduction of Fault Presumption. First, the connotation of Fault Presumption is analyzed from its history, concept, feature, classification and character. Secondly, the difference between Fault Presumption and other concept is clarified in order to further explain the intention and necessity of Fault Presumption. Thirdly, the scholars'positive and negative evaluation for Fault Presumption is probed so as to confirm its positive effect and admit its shortcomings.The second part expounds the basis of Fault Presumption in our country and discusses the necessity of Fault Presumption in our country from theoretical basis, practice basis and criminal law development basis. It analyzes the compatibility of Fault Presumption and our current criminal law theory, both domestic and overseas judicial practice used to adopt Fault Presumption so as to conclude that Fault Presumption is the outcome of criminal theory development, denying the Fault Presumption goes against the trend of the times of criminal law development.The third part discusses the establishment of Fault Presumption system. It researches the application scope of Fault Presumption in the view of protecting the human right, which is emphasized in the legal principle of crime and punishment. It comments on the principle of Fault Presumption, the rationality and necessity of Fault Presumption stipulations in regulation and judicial explanation, and the security system's establishment, so as to perfect our nation's Fault Presumption system.
Keywords/Search Tags:Fault Presumption, Research meaning, Thesis structure
PDF Full Text Request
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