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Study On The Criminal Burden Of Proof Of The Defendant

Posted on:2014-01-30Degree:MasterType:Thesis
Country:ChinaCandidate:Y GaoFull Text:PDF
GTID:2256330401961822Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The distribution of the burden of proof acts stands as the important position inthe theory of criminal litigation, it will not only contribute to the realization oflitigation purpose, but also of great significance in accelerating the process oflitigation justice and efficiency. Seen from the current system of our country, variousproblems emerge. Disunion of the theory researches, deficiency in rules and theimperfection of the necessary related systems,etc, still exist in the criminal litigationsystem.The first part of the paper is the overall analysis of the burden of proof acts andcriminal defendant. Through the subjective and objective interpretation of the burdenof proof theory of the continental law system and the Anglo-American law system ofdouble proof responsibility theory model, we comes to a conclusion that the burden ofproof and the prosecution to prove the defendant liability will be inevitablyinconsistent and must be differentiated. From the nature of subjective burden of proof,the defendants’ responsibility does not have the general applicability, for which theyare not in need of shouldering the risk of losing the litigation.The onus of proof is aresult of defendants’fighting for the more advantageous position in litigation, for thepresumption against the defendant exist in the criminal law. The full exercise of theright of defense should bear the burden of proof in some form.And the requisition ofwho advocates, who demands is an objective basis to bear the burden of proof of thedefendant.In the second part of the paper, the author analyzed the legitimacy of thedefendants’ burden of proof theoretically, on the base of distinguishing the differentnature of the prosecuting and defending parties, which is the theoretical focus of thewhole paper. First of all, the author analyzes the connotation of the the principle ofpresumption of innocence, the grounding principle of the criminal procedure. Startingfrom this principle, the author illustrate the specific influences of the allocation of theburden of proof in criminal proceedings.The property of subjective burden of proof ofthe defendant is not in conflict with the principle of presumption of innocence, whichmake the defendants’ rights consistent with the grounding principle in the intrinsic spirit to the sense of the full exercise of the right of defense. In the specified period oftime, the criminal policy will alleviate the difficulty of the prosecution evidence byassigning some of the burden of proof to the accused for the purpose of strikingcrimes. From the consideration of the litigation cost, the assumption of some of theburden of proof under certain conditions can reduce litigation cost, realizing thefairness in the economic sense.The third part of the article analysis national legislation situations of manycountries.This part lists France and Japan as the Civil Law countries while Britain andthe United States as the Common Law countries.Of course many other countries arealso very valuable.The article can’t list so many that the number is so huge.Germanyand Chinese Taipei are also very valuable.The fouth part of the article lists the burden of proof of defendants in our country.This part is the most important part of the article for containing suggestions.First,Ilists the situations of the burden of proof of defendants in our country.And then,comesto a conclusion of my own.Second,I think that the standard of proof of defendantsshould have different form.The last,the article give three suggestions to ensure thedefendants’rights in litigation.
Keywords/Search Tags:Burden of Proof of the Defendant, Subjective Burden of Proof, Objective Burden of Proof, Criminal Presumption
PDF Full Text Request
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