The Failure Of The Standard Of Criminal Proof And Its Cure

The criminal procedure is actually a process that the prosecution collect evidence toprove the crime,the defense answer the charge according to the proof standard,and the judgedetermine the case facts and the criminal liability of accused. In this process,the proofstandard plays an important guidance role to the parties in evidence collection, determinationand application,especially to the public organization. Once the proof standard loses bindingforce to the investigative organization, forensics can not achieve an objective, comprehensiveand legal requirements, as a result,the burden of proof on the prosecution can not becompleted to meet the requirements of the standard of proof. If it loses the binding of the factfinder, fact-finding activities will be like a runaway horse that loses its rein, the fairness of theconviction and sentencing of a factual basis will be lost. Failure of the standard of proof incriminal proceedings will not only be unconducive to the fight against crime, but also to theprotection of human rights.Researching the proper role that the criminal standard of proofplays on the investigation, the review of arrest, the prosecution and the trial activities (ie., thebinding of the criminal standard of proof), revealing the performance that criminal standard ofproof does not play due binding on these proceedings(ie.,the failure of proof standard),andthen analyzing the reasons,it will be helpful to make the standard more feasible,finally,finding out the way of playing binding.All these above will ensue the the correctnessof the facts found and achieve the purpose of combating crime and the protection of humanrights in equal attention.In addition to the introduction of this article, the paper is divided into four parts, aboutfour thousand words.The first part of the study the concept,the under and the performance of criminalstandard of proof binding.The so-called binding criminal standard of proof,is the standard ofproof in criminal proceedings which has the due effect on the behavior of each subject ofproceedings,the core of it is the suitable constraint function on the investigation, prosecutionand trial. It displays in the following aspects:the investigation organ shall collect evidence andtransfer for examination before prosecution in an objective, comprehensive and legal way inaccordance with the requirements of the certificate standard, procuratorial organs shall reviewto sue according to this, the court shall make a judgment in the same way. The binding of criminal proof standard based on the one hand is to keep the rational state of the judge, on theother hand,to guarantee the rationality of free evaluation.The second part reveals the performance of the failures of criminal standard of proof injudicial practice. Failure of the criminal standard of proof, it refers to that the standard doesnot play its binding force to the proceedings behavior of the investigating authorities, theprosecutors and the judicial. It is embodied in the following aspects: Firstly, the investigatingauthorities (department) do not collect evidence objectively,comprehensively and legally inaccordance with the requirements of the procuratorial organs to complete the burden of proof,emphasis on the collection of conviction evidence but ignore the collection of sentencingevidence, the comprehensiveness of evidence is insufficient; the attention to the legality of theevidence is not enough. Secondly, in relation to the prosecution, the failure is that theprosecution is lack of the attention to legitimacy of the the evidence and dare not to excludeillegally obtained evidence when institute a public prosecution; lack of comprehensiveattention to evidence, emphasis on proving the fact of conviction, ignore testifying thesentencing fact. Finally, as for the judicial,it shows that the cases which do not meet thestandard of conviction proof are not handled in accordance with the principle of “Suspected asinnocent”,but be made as guilty verdicts, or be delayed indefinitely. Regardless of the judgeor prosector,they must determine facts by rational thinking and right way of mentalimpression and away from the outside factors.The third part analyzes the reasons of the failure of criminal prove standard. The reasonsare various, mainly including the following aspects. First, litigation mode of punishmentcauses that the criminal suit lay particular stress on criminal punishment,pay attention to theguilty facts but ignore the innocent. Second, China ’s criminal procedure presents a verticalstructure of" line " type, each part does not link closely,therefore, it needs to maintain therelationship between the litigation procedure by the case file of investigation.It is the reasonwhy our criminal procedure forms a litigation structure that can be called"investigation centerdoctrine". Again, the investigating authorities dominate the litigation activities in pre-trialproceedings,however, the oversight of prosecutors is limited. Investigation activities can notbe effectively provide sufficient and reasonable basis for prosecution, the original therelationship between prosecutors and police turns to be the phenomenon of " with more thanrestricted ". In the end, decision-making mechanism of litigation in court becomes seriouslyadministrative, the " witnessed "judge often can not make the final findings of fact but to follow the recommendation of the leader. The entire criminal justice system is based onstrict structure dominated the fight against crime, the concept of due process is missing.The fourth part points out the way about how to play a binding of criminal proofstandard. To make it play a fully binding,in the first word,we should break the existingpattern about the model of conviction and change the criminal proceedings purpose ofpunishing crime,then make sure that the physical reality and due process can be in equalposition. In order to bring attention to negative real facts,we should lay emphasis on the dueprocess to make it come true. Next, we should adjust the vertical structure of the criminalproceedings, strengthen the capabilities of error correction in the trial stage,make it be theresponsibilities of the the court finding the passive real entity and improve the structure of thelateral tripartite action on this basis. Once again,we should straighten out the relationshipbetween prosecutors and police, make the public prosecution be the center of the pre-trialprocedures, establish collaborative relations between prosecutors and police and then focus onthe unidirectional constraints that the prosecutors make to the investigative organs.In the lastword, we should improve the decision-making mechanism,ensure the external independenceof the court.The court inside should also give the right back to the collegial panel, reduceimproper administrative intervention and establish a decision model that the judge can be asthe center of the decision-making.