On Completing The Distribution System Of Burden Of Proof In Criminal Litigation In Our Country

In criminal litigation, only has the burden of proof in criminal litigation been distributed properly, the prosecution of the accusing party can be guided well, and the judge is able to bring his or her judging role in criminal litigation into a good play, and protect the legitimate interest of the accused party in a better way. Due to the existing deficiency in the distribution system of burden of proof in criminal litigation, it requires us to learn from the nations of Civil law system and Common Law System and set foot on the specific national conditions of our country to make up the distribution system of burden of proof in criminal litigation through that in specific issues based on the theory of hierarchies. This thesis is divided into five parts, excluding the introduction and conclusion.Part-1 is about the concept and characteristics of the burden of proof. Scholars have different opinions on the connotation and extension of burden of proof and the writer believes that burden of proof is the responsibility of the involved judicial authority or persons to collect and provide evidence which can prove that the propositional case is well-grounded or evidence in favor of them, otherwise, they shall take a risk in case that their proposition is groundless. The burden of proof is a burden of the litigant, with three characteristics: first, burden of proof is a legal responsibility and obligation; second, burden of proof is a burden of danger; finally, burden of proof is a dangerous burden that is unfavorable to the judge.Part-2 is the investigation on the distribution system of burden of proof in a comparative method. In this part, the following distribution theories on burden of proof in Civil law system are introduced such as the theory of classification of factum probanda, theory of classification of legal requirement, theory of probability, theory of the danger field and theory of classification of laws and regulations, which are based on continental legal system; it is believed that there is no universal rules to distribute the burden of proof between litigants in Common law countries, but the judge will consider and decide concretely according to some factors such as policies, convenience, and fairness and probability that should be considered in individual cases; Through a comparison between the distribution theories of burden of proof in the two law systems, it is believed that they are different in manifestation and methodology, but there is commonness in three aspects: the realization of justice is the best ideal of the distribution theories of burden of proof in both of the two law systems; the distribution theories of burden of proof should abide by the principle of lawsuit justice; the distribution of burden of proof shall consider the realization of the purpose of action.Part-3 is about the rules of distribution and bearing methods of the burden of proof in criminal litigation. Combined with the actual situation of our country, the writer categorizes and concludes the general rules of distribution of burden of proof, which are: the principle of legality, principle of justice, principle of conjoinability, principle of convenience, and principle of policy. The writer further thinks that the distribution of the burden of proof in China's criminal litigation should abide by the principle of presumption of innocence and the principle favorable to the accused person. According to the regulations of Article 162 of Law of criminal litigation in this country, we can see the distribution of the burden of proof between each involved party in China's criminal litigation: cases of public prosecution are undertaken by the public prosecutor; cases of private prosecution are undertaken by the private prosecutor; the accused person and the judge do not bear the burden of proof in principle.Part-4 is about the problems existing in the distribution system of burden of proof in criminal litigation in our country. Through the understanding of the definition and characteristics of the burden of proof, and the comparative investigation into the distribution theories of the burden of proof in the two law systems, as well as the summary of the basic principles and bearing of the burden of proof in criminal litigation in our country in the above parts, combining with the actual situation of the criminal litigation, the writer believes that there are the following deficiencies existing in the distribution system of burden of proof in China's criminal litigation: the regulations on the distribution of the burden of proof are too simple and brief; the distribution of burden of proof between complainants are indefinite; and the distribution of burden of proof between the accused persons is not paid enough attention, and the responsibility of the judge on proof is not clear.Part-5 is the systematic structure of the distribution system of burden of proof in criminal litigation in our country. Due to the existing problems in the distribution system of burden of proof in criminal litigation in our country, the purpose of criminal litigation can not be well fulfilled, and the function of criminal litigation is unable to be brought into a good play, which forces us targeted to settle these problems, and make up a new systematic structure for the distribution system of burden of proof in criminal litigation in our country. Firstly, integrating with the actual situation of our country and the ongoing reform of judicial affairs, draw full lessons from the theory of hierarchies for burden of proof in Common law countries as the theoretical principle to construct the distribution system of burden of proof in criminal litigation in our country through learning from the concepts of the theory of hierarchies for burden of proof; to institute and improve the theory of hierarchies for burden of proof in our country with the theory of hierarchies for burden of proof to standardize the distribution manners. Secondly, adopting the way to set express specific clauses and detail the distribution of burden of proof as required, strengthening the legislation on the distribution of burden of proof. Thirdly, by further clarifying the responsibility of the accusing party, clearly dividing the responsibility of presenting proofs between the accusing and accused parties, clearing cut that the accusing party shall bear liability if he or she fails to perform his or her responsibilities, and the burden of persuasion of the entire case should be accepted by the accusing party, the distribution of burden of proof of the accusing party is further clarified. Fourthly, to make an analysis on the burden of the accused party to present proofs from the following four aspects in which the accused party bears the burden of presenting proofs: the accused party is based on supposition; the accused party claims that there is impediment of illegality; the accused party claims that there are some facts that affect the sentence in a self favorable way; the accused party claims that there are proceeding facts that are favorable to himself; it is believed that the accused party only bears parts of the burden of persuasion instead of the entire burden, so the distribution of burden of proof of the accused person shall be clarified from the responsibility to present proof and the burden of persuasion. Finally, the burden of verification of the judge is proposed. The burden of verification and burden of proof are differentiated from the burden of verification and burden of proof, as well as the burden of persuasion between the judge and the accused and accusing parties.Above all, the writer believes that it is not realistic to find a method and principle to accomplish the distribution problems burden of proof in criminal litigation once and for all, so we need further research constantly. Combined with the current reform of the judicial system, adversary litigation system is paid more and more attention by the public, the theory of hierarchies for burden of proof rooted in adversary system is unquestionably meaningful for the improvement of the distribution system of burden of proof in criminal litigation in our country. Starting from this point, based on the theory of hierarchies for burden of proof, the writer appeals to strengthen the distribution legislation of burden of proof, makes an elaboration on the burden of proof of each party involved in criminal litigation, and highlights the protection for the rights of the accused party, but avoiding to get caught up in it, look upon the completion of the distribution system of burden of proof in criminal litigation in our country from a visual angle of development.