Questions Research On The Burden Of Proof Of The Procedural Defense

Procedural defense is a new form of aggressive defense proposed by the advocate of a defendant against the procedural illegal acts of personnel investigation, prosecutorial personnel and even adjudicators, it differs from all forms of defense in the past, and plays a significant role in protecting and safeguarding the lawful interests of the defendant, curbing the procedural illegal acts of public security and judicial authorities, and upholding procedural justice. In order to show the value of procedural defense, there must be a set of well-established available system, burden of proof is one of the most important steps of this system. Burden of proof in procedural defense focuses on a series of issues regarding subjects of procedural defense, objects of proof, allocation of burden of proof, as well as standards of proof. This paper intends to carry out initial discussion and research on the burden of proof of procedural defense in China by drawing on the theories and practices of main states of the two legal systems (civil law and common law systems) with respect to burden of proof in their procedural defense, so as to present a burden of proof system for procedural defense that is in conformity with China's judicial practices.This paper has three parts.Part One provides an overview of the burden of proof in procedural defense. The author proceeds from the concept, characteristics and value of procedural defense, and then analyze the distinctiveness of the burden of proof in procedural defense from burden of proof in criminal cases.Part Two introduces the theories and practices of the burden of proof in procedural defense in major countries of two legal systems. The author endeavors to introduce and summarize the burden of proof in procedural defense in five countries, namely, the United States, UK, Japan,Germany, and France by taking two institutional arrangements for example, viz. exclusion of illegal evidence and invalidation or termination of litigation acts, with the aim of summing up the difference among them and the reasons for such difference. Part Three aims to construct China's own system of burden of proof in procedural defense. In this part, the author puts forward a burden of proof system of procedural defense featuring defendants' responsibility of raising reasonable doubts and procurators' responsibility of eliminating such reasonable doubts, then respectively discuss the natures and standards of proof of this system, and finally elaborates on the framework of the system.