The Presumption Of Fact In Criminal Procedure

Presumption is a concept of the Law of Evidence and a method of confirmingthe alleged facts in the case which distinguished from Judicial proof.Presumptionplays an important role in settling difficultis of proving, because using presumption tojudge fact is easier than proving it.Presumption is widely applied in civil field, due topresumed fact has a certain probability.Generally, presumed fact is true and accurate,but it also can appear error in individual case for presumption can reach the standardof highly probability.Such a "high probability"in presumption is accord with proofstandard in the civil procedure, which also determines the important position ofpresumption in civil procedure.In criminal field which demands higher standard of proof, it is difficult to makethe proofs up to "beyond a reasonable doubt".Especially for proving the defendant’ssubjective elements,it is usually unable to prove in individual case.Criminalpresumption reduces the difficulty of proving so as to avoid lawsuits beingdeadlocked, which plays a complementary and irreplaceable role out of scope ofjudicial proof.But based on the nature of presumption’s probability we should also bevery careful to set and apply presumption in criminal field.When applyingpresumption, most theorists and judges agree the presumption of law which bases onclear legal provisions.On the contrary,the fact of presumption which bases onexperience rule and logic rule is mainly ignored, or avoided, or denied.Theory andpractice mainly hold a kind of negative attitude to the fact of presumption in criminalfield.Therefore, it is significant to discuss the independent existence of the factpresumption, defects occurring in the process of using and regulation suggession.Thispaper illustrates the status of independent existence of presumption through statingthe connotation and value of presumption. The definition of presumption’s positionplay a basic role in definition of presumption of fact status. On the basis of affirmingthe independent status of presumption, author explain the independentce of the factpresumption through the classification of presumption and the cause of the factpresumption, from the perspective of necessarity and reality. This article is divided into four parts, the first part explains the connotation ofthe fact presumption. At the first, revealing the essence of the presumption and thedefinition of the position in evidence law.Then explaining the connotation of the factpresumption,disputes views about position of the fact presumption and the realmeaning.The second part analyzes the reasons of the fact presumption anddemonstrates the theoretical justification and necessity and objective reality of theexistence of the fact presumption. The third part discusses the present situation of thefact presumption, which is the core of this article.It demonstrates the independentexistence of the fact presumption from two aspects of the necessarity and reality.Onthe level of necessarity, the independence of the fact presumption becoms prominentthrough demonstrating the legitimacy of theoretical basis, distincton with otherrelated concepts, the unique value of fact presumption and special effect.On the levelof reality level, it demonstrates the objective existence of presumption of fact andnecessity through the analysis of practical cases.These two levels show the currrentsituation of the fact presumption at the same moment.The fourth part objectivelyanalyzes the defects existing in using the fact presumption and make pointedreferences to regulate abusing of discretion.I hope this study may be conducive tojuridical practice and theory research.