Studies On The Criminal Burden Of Proof Of The Defendant Under The View Of Economics

The burden of proof in the field of criminal procedure is a difficult andimportant problem. Before the German scholar Julius Glaser created a “doublemeaning”, the burden of proof was regarded as “the responsibility to provide evidenceof proof”. At the beginning of twentieth Century, the double meaning theory wasregarded as “mainstream theory”, while avoiding a lot of disputes in the field. But thedouble meaning theory not only solves a problem but also produces a lot of trouble.Since then, we have to become more circumspect in discussing the burden of proof. Alittle neglect may lead to confusions in the definition of burden of proof. Thediscussion of burden of proof of criminal defendant at home, always faces with theunfortunate situation.Therefore, in the background of domestic current criminal law system andbased on the double meaning theory, this paper analysis the economic considerationsfor distribution of the essence burden of proof and the responsibility to provideevidence. At the end of this article, there are some good ideas from the perspective ofeconomics. Whether it is the distribution of the essence burden of proof or thedistribution of the responsibility to provide evidence, legislators need the economicconsideration of cost minimization. When allocating the responsibility to provideevidence to the defendant, the expected misclassification loss minimization andenhancing deterrence of penalty are all the goals of lawmakers. In addition, by theway of allocating the essence burden of proof and most of the responsibility toprovide evidence to the prosecution, we can incentive and restrain the prosecutors’behaviors, and make the prosecutors become the state’s “qualified” agents. Theincentive and constraint mechanism can also be used as a useful index, when we wantto further improve the system of criminal proof of burden. Furthermore, the lawyer asthe defendant’s agent, also need the incentive and restraint mechanism to regulatetheir behavior. The criminal burden of proof system, which based on the “lawsuitmain body status” of defendant, can reduce the transaction costs between the defendants and their lawyers, can significantly improve the defendant’s ability ofproviding evidence. All of these will be advantages for the development of the lawyerindustry in domestic.Finally, the author thinks that we should further strengthen the prosecutor’sessence burden of proof and the main responsibility to provide evidence. At the sametime, we should enhance the defendant’s ability of providing evidence and ensure thatthe defendant gets equal armed in the provision of evidence. The pursuit of“efficiency” in allocation of the criminal burden of proof, don’t interfere with therealization of “justice”. Furthermore, efficiency turns to be a further "reliablereference standard of justice".