On Burden Of Proof Of The Accused In Lawsuit

Burden of proof in lawsuit refers to that who undertakes the burden of proof in lawsuit and who undertakes the bad consequence at the end of final trial when it is not sure whether the statement is right or wrong. At present, presumption of innocence is applied in each country (or the spirit is absorbed). Based on the presumption of innocence, the burden of proof in lawsuit is undertaken by the accuser. The burden of proof undertaken by the accused is the exception of allocation of burden of proof in lawsuit. It reflects the choice and decision of truth and guaranteeing of the human right. In addition, it is closely related to the theories in the evidence law and lawsuit science. The purpose of this thesis is to propose some advices on perfection of burden of proof of the accused in lawsuit in China on the basis of discussing legislation as well as theoretical exploration of each modern country.This thesis is divided into three chapters and the content is:In the first chapter, the author illustrates the connotation of the burden of proof. According to the investigation on burden of proof in civil law system, Anglo--American law system as well as China, the author takes the view that the concrete content of the burden of proof is different on the basis of different social and historical background. Burden of proof includes two levels: burden of proof of act and burden of proof of consequence. The former refers to that the client must provide the proof for his own statement in lawsuit and the latter refers to that at the end of lawsuit, the judge must decide the result based on the principle of burden of proof when it is not sure whether the statement is right or wrong. On this basis, the author analyzes the theoretical basis of burden of proof of the accused, thinking that the burden of proof of the accused is the prudent of one country after consideration of procedure justice, criminal policy, justice and efficiency as well as convenience and evidence distance. It is an exception of the allocation of burden of proof in lawsuit. What's more, burden of proof of the accused does not contradict with the presumption of innocence. In other words, the accused does not undertake the burden of proving himself guilty and does not undertake the burden of proving himself not guilty in principle. However, in the exception of the law, the accused has to undertake the burden of proving himself not guilty or to commit lighter crime. It does not contradict with the presumption of innocence and they can exist together.In the second chapter, the author investigates the legislation as well as the practice of burden of proof of the accused in modern country. The investigation is done according to different lawsuit frame: the first section investigates the burden of proof of the accused in civil law system, including France, Germany and Taiwan of China; the second section covers the burden of proof of the accused in Anglo--American law system including the Great Britain, America and Hong Kong; the third section analyzes burden of proof of the accused of Japan with mixed patterns; the fourth section investigates the theory of burden of proof of the accused in China. According to the investigation of legislation and theoretical research on burden of proof of the accused in the above countries and areas, the author takes the view that the allocation of burden of proof is defined based on policy, fairness, evidence holding and evidence distance, convenience, morality, experience rule and the client should undertake the burden. Although in each modern country, the burden of proof of the accused is the exception of burden of proof, the accused undertaking the burden for providing the proof for part of statements is the international universality. Viewing from protecting the human right of the accused, China should perfect the burden of proof of the accused system. It should regulate that in certain situation, the accused undertakes the burden of proof which is limited within the burden of proof of act (burden for providing proof).In the third chapter, the author investigates the present situation of the proof of the accused in lawsuit in China, aiming at the trait of criminal lawsuit procedure (such as the accused is in prison before the lawsuit; the defending right of the accused is weak; the defender does not enjoy the investigation and obtaining evidence right; the time for participating in lawsuit is late), the author takes the view that the accused only undertakes the burden of proof of act for his own interest (burden of providing the proof) not the burden of proof of consequence in the situation that he has the ability to provide the proof and the convenience. The burden of proof of the consequence should be undertaken by the defender. Finally, the author proposes advice on perfection of the burden of proof of the accused by listing the situations including procedure law fact, specific illegal owning crime, removing the factors of crime, legal lighter crime, mitigation of crime or prevention of punishment of crime, fact that he is not in the crime scene or fact indication and so on.