On The Defendant's Testifying Responsibility In The Public Prosecution

In the construction of modern criminal prosecution of "the creed of focusing on the justice" and "the creed of focusing on the party" and in the system of modern evidence of "the principle of judgment based on evidence being the monarch item of regulations of evidence", the issue of the testifying responsibility has become the decisive factor in promoting the process of prosecution and of deciding the success or failure of prosecution.The divergence of the theory of testifying responsibility consists in the disputation of the definition of "testifying responsibility" itself. Therefore, it is quite necessary that we should at first contemplate the origin of the theory of testifying responsibility from the comparative perspective—the theory of testifying responsibility of the two legal systems. We should be clear about the content system and function of the definition of testifying responsibility. The most important thing that we should be clear about is that testifying responsibility is "dynamic". Testifying responsibility is of the obligatory category in essence, and the legal attribution thereof is not only an issue in the charge law, but also the bridge to constructing the application of entity law and to carrying out prosecution procedures. The tradition of statute law and the prosecution mode of the creed of focusing on the party have great influence on the distribution of testifying responsibility. From the macro point of view, the items of entity law arrange the distribution of testifying responsibility.When we do research on the criminal testifying responsibility from the perspective of the criminal law, the criminal law spirit of "neither treating unjustly nor conniving" and the balanced criminal prosecution notion of "finding the true and justified procedures" decide the connotation and function of the criminal testifying responsibility from the macro point of view. Hence, the notion and decisive factors of the distribution of the criminal testifying responsibility are as follows: implementing the tenet and the aim of the criminal law; carrying out the spirit of the criminal policies; and measuring the essential factors such as the difficulty of testifying, holding of evidence, benefit of prosecution and the justice principle and so on. Therefore, the decisive factors of the distribution of testifying responsibility are actually diversified, and we should never conceal it with a simple excuse of "the principle of innocence deduction".In the prosecution mode of the creed of focusing on the party, "the side who claims provides evidence" is still the general principle of the distribution of the criminal testifying responsibility. Therefore, the prosecution who claims the defendant is guilty should be responsible for the testifying responsibility to prove it. However, this is not absolute. The defendant should also shoulder relevant testifying responsibility. From the theoretical perspective, the defendant has the necessity of shouldering testifying responsibility because of the need of "finding the truth", the realization of "the theory of the prosecution's principal part", the existence of the defendant's claims and claim responsibility, and some other essential factors. However, because of the offer and protection of the defendant's rights of "justified procedures", the reinforcement of the function of the defense counsel and the impartial stand of the law, it is possible that the defendant shoulders the testifying responsibility.If we probe into the origin of "the principle of innocence deduction", it is in essence "the principle of innocence assumption" in the procedure law, and the significance consists in the full protection of their prosecution rights through assuming the legal position of the suspect and the defendant. It is the principle of innocence deduction in the field of evidence law that decides the distribution of the testifying responsibility, and it is the reflection of probabilism principle in the criminal filed. However, the probabilism principle is just one of the factors to decide the distribution of testifying responsibility. Therefore, the testifying responsibility shouldered by the defendant does not contradict with the so-called "the principle of innocence deduction".There is no lack of the cases of the defendant's shouldering the testifying responsibility when we study the legislation of the criminal law of various countries. Some try to justify the correctness of the proposition of testifying responsibility shouldered by the defendant from the practical point of view. But, if we analyze thoroughly, we can find, to some extent, the defendant's testifying responsibility has such characteristics as unilateralism, passiveness and non-finality.There are two extreme tendencies in the issue of the testifying responsibility shouldered by the defendant in the judicial practice. We should not only reject the remains of guilty deduction, but also oppose the wrong thought of avoiding the defendant's testifying responsibility.In the light of the necessity of anti-corruption and the severe punishment of the official crime, we should abide by the spirit of the UN's Anti- corruption Pact so that the defendant of the official crime would shoulder more testifying responsibility to alleviate the burden of the prosecution.