Research On The Burden Of Proof And Standard Of Proof In The Application Of Criminal Presumptions  Posted on:20130414  Degree:Master  Type:Thesis  Country:China  Candidate:S B Yu  Full Text:PDF  GTID:2246330395488038  Subject:Procedural Law  Abstract/Summary:  PDF Full Text Request  The presumption is that an important complementary of proof mechanism, is animportant factfinding mechanism, and has a significant impact to the judicial practice.However, the current domestic scholars who are in the study of theories on presumption areused to investigate the concept of presumption and ignore the effectiveness of presumption,that is what effect presumption has on the burden of proof and standard of proof. Even ifsome scholars have referred to the effectiveness of presumption, but they loosely pointed outthat "presumption transfers he burden of proof, and lowers the standard of proof", and theydon’t proof how the presumption affects the burden of proof and standard of proof in detail.Therefore, exploring the mechanism that the presumption affects the burden of proof andstandard of proof, not only can improve the presumed related theory, but also provides atheoretical basis for the application of presumption in judicial practice.This article starts with clarifying the concept of the burden of proof, combining withcomments on kinds of presumption doctrine, mainly through analyzing the basic fact andpresumed fact in detail, comes to the conclusion that the presumption separates undertakers ofsubjective burden of proof and the objective burden of proof. In addition, the author comes tothe conclusion that the presumption only reduces the sollen level of standard of proof,according to analyzing the two dimensions of the standard of proof and comparing thestandard of proof in the basic fact and presumed fact. And the author further analysispresumptions in the criminal law as well as changes of the burden of proof and standard ofproof in specific presumption cases.Finally, in view of the effect and limitation of thepresumption, put forward some corresponding principles on regulating the presumption.Besides the introduction and conclusion, the text is divided into four parts, organized asfollows:The first part is a basic theory about the criminal presumption and the burden of proof. Itfirst starts with clarifying the concept of the burden of proof, combining with comments ontheories about the presumption and burden of proof theory, analyses differences of concept of the burden of proof between the common law legal system and the civil law legal system, andpoint out that in our country, present relevant theoretical researches should be based on theconcept of the burden of proof in the civil law legal system.Then basing on the clearing of the burden of proof, from the perspective of the basic factand presumed fact, it comes to the conclusion that the presumption leads to the separation ofundertakers of subjective burden of proof and objective burden of proof. And it transferssubjective burden of proof, but it doesn’t transfer objective burden of proof.The second part is a discussion about criminal presumption and the standard of proof. itfirst elaborates diversification and delamination of the standard of proof. And it pointes outthe existence of the sollen and reality of the standard of proof.Then basing on the diversification and delamination of the standard of proof, itelaborates the standard of proof in the basic fact and presumed fact, and it points out that thestandard of proof in the presumed fact should be " the preponderance of the evidence".Finally, it elaborates that the presumption lowers the standard of proof form theperspective of the sollen of the standard of proof; and it elaborates that the presumptiondoesn’t lower the standard of proof from the perspective of the reality of the standard ofproof.The third part is f criminal presumption in the judicial practice.basing on above parts; itanalyzes presumptions in the China’s criminal law in detail. Then through the analysis ofspecific cases, it elaborates the application of presumption in the judicial practice.The fourth part is the regulation of criminal presumption. it describes the limitation ofapplication of criminal presumption, as well as principles that establishing of presumptionhas to abide by.  Keywords/Search Tags:  presumption, burden of proof, basic fact, presumed fact, standard ofproof  PDF Full Text Request  Related items 
 
