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Several Basic Study On Criminal Presumption

Posted on:2017-01-13Degree:MasterType:Thesis
Country:ChinaCandidate:Z W HanFull Text:PDF
GTID:2296330503959113Subject:Litigation law
Abstract/Summary:PDF Full Text Request
Criminal Presumption is a system of both substantive law and procedural law of content, how to relate to the objective evidence linking the subjective purpose, in the subjective aspects of the suspect and other issues to achieve effective breakthrough. Criminal Presumption its unique form of logical inference has widely used(especially the fact that the presumption) In practice, however, the theory and practice but there are some out of line, causing a certain degree of chaos. At present, the presumed criminal and related issues are more focused on the research field of substantive law and procedural law in particular, and prove the existence of a disconnect in responsibility and standard of proof and so on. Therefore, this criminal presumption main line, focus on research in the field of procedural law blind spot to explore suitable misunderstanding that currently exist and discusses the corresponding applicable regulations. Specifically, this article will be divided into "the concept of criminal presumption, characteristics and classification", "Analysis of Criminal Presumption and related concepts", "the subjective aspect of the crime ’knowingly’ in estimating the applicable", "estimating the burden of proof ", " presumption research standards applicable proof " and "criminal presumption applicable rules ".First chapters is the concept of criminal presumption, characteristics and classification.For accurate presumption of the concept, whether domestic or outside of academia can be said to be controversial. However, no rules no set blueprints, exploring the boundaries of the concept of uncertainty related issues will remain at the top of "hollow." Although the presumption can be understood from the context and perspective of different, but the basic process of estimating the specific use or have a generally accepted and easy to grasp. Therefore, in order to harmonize its exact concept might be worth a try. This process can be summarized as deduced from the fact that A B facts process, and its derivation is based on the common experience of social life. There are three basic presumption of the constituent elements, namely the basic facts, and the facts presumed normal contact. It follows three fundamental properties presumption that the link between the two facts are generally agreed with probability and still belongs to a method of proof. In summary, it is possible to define the concept of presumption: rational man generally accepted, or probability of default or legal recognition of legal proof.After defining the concept of the presumption, the presumption of analysis features which helps improve the presumption of accurate understanding. Specifically, presumed to have the following three main features, namely the basic facts, the facts constituting the presumption of normal contact, both procedural and substantive law content, and a more favorable adverse presumption presumption majority.As favorable and unfavorable presumption presumption of having a variety of classifications. In these, the most important, universally accepted classification is the law and the facts presumed presumption classification. The main difference between the two is whether the provisions in the Penal Code among the differences spawned by the other differences, including the applicable procedure, whether mandatory, applicable priority level, judges initiative can refute different content and so on. In Theoretical process, sometimes often do not pay attention to the legal presumption and the presumption of fact to distinguish between the two, with the "presumption" word to sum up, this approach is not rigorous. Therefore, it is necessary to determine the boundaries of a person, in order to delineate the two "spheres of influence." Legal presumption actually refers to all applicable codes and rules including judicial interpretation of the provisions, including written, not just a number, "only a handful" of the Criminal Code on the rules, and the fact that the presumption can be identified as to remove the presumption of law all applicable rules outside. However, many of them for the fact that theorists presume the existence of reasonable doubt and negative, must be abolished presumption of fact that the form of this classification. In fact, this approach is trifles. It is presumed by the hundreds of thousands of legal presumption of fact apply lessons learned from the rise. In addition, the fact that the estimated value of litigation also has economic and other litigation. However, we must face up to is the fact that the existence of presumed arbitrary, artificial, subjective component, it must be regulated. Applicable presumption of fact is necessary to prevent judges subjective, it must be of great practical and urgent needs. And this important and urgent needs should cover not limited to "national security", "policy needs", "major issues" and "litigation economy" and so on.Second, chapter is the presumption of discrimination related criminal Concepts.While in the first part of the definition of the concept of the presumption of content and characteristics, etc., but still very accurate connotation putative easily confused with related concepts, such proof, it is assumed, reasoning, inference and the like fiction. This is a common problem in practice, therefore, it is necessary to draw a boundary between the concepts. Discrimination presumed from the following multiple perspectives to study, discuss, identify and distinguish between related concepts.(I) presumption and proof: the logic, structure and methods of proof and proof proof objects.(II) presumption and assumptions: the degree of probability, Verification and Falsification and advance and lag and so on.In addition to these three points difference, an important principle of presumption and criminal proceedings "presumption of innocence" has a close relationship and difficult to distinguish. "Presumption of innocence" From the point of view seems to be the name contains a presumption of Conception, however, in fact, "presumption of innocence" presumption is not presumed, but a presumption. This is a theoretical discussion of the concept of a lot of very confusing.In addition, since the presence of subjective presumption, probability and other characteristics, such that it is and some scholars believe that "presumption of guilt" is no different. Careful analysis is not difficult to find, "presumption of guilt" in the presumption and the presumption of innocence, are assumed. Moreover, the "presumption of guilt" proof of guilt is determined in advance and then collect evidence of a crime, all purpose is to confirm the defendant to prove guilt, the burden of proof applicable unbalanced and integrity. The presumption is lagging identified adverse state was the first to gather evidence of proof of the crime, the purpose of everything is to prove economic litigation, the burden of proof of a more balanced and individually applicable. A clear distinction between the two.Finally, the presumption of compliance with the presumption of innocence of the value of content is a very worth exploring proposition. Although the presumption of innocence and the presumption seemingly contradictory, but it is consistent with the presumption of innocence presumption of value connotation. From litigation purposes of evidence in terms of judgment, just a few. And, as a presumption of innocence in favor of the principle of the value of the protection rights of the accused, the emphasis is convicted of statutory and treatment defendant in the lawsuit, the core idea is to give the defendant an adequate defense rights of the accused and reflect Personality respect, rather than to the interests of the proceedings on the defendant tilt. This estimated value of content is not contradictory.(III) presumption and inference——from the absence of proof to the research process:Presumption of proof: argument argument(the basic facts of the certification process) → → Missing argument conclusions.Proof of reasoning: the arguments arguments → → argumentation conclusion.(IV) presumption and inference: the standard of proof and evidence number, the burden of proof, findings of fact and legal issues and the fact that the obligation issues.(V) Presumption and fiction: legal link with normal contact, the rights of the accused and the burden of proof.Third chapter is the subjective aspect of the crime "knowingly" in estimating the applicable.Although the presumption is consistent with the presumption of innocence connotation, but the burden of proof or presumption on the defendant must bear the burden of litigation. Such a burden is mainly reflected in the constitutive elements of crime in terms of the subjective element. More specifically, the presumed role in the subjective aspect and focus on performance in the "knowledge" of the problem. When we discuss the problem of knowing when we should first determine the scope of the problem knows, the presumption does not address the accused belong to the intentional or negligent problem that does not solve the problem of knowing under the General Penal Code. Thus, the presumption of knowing that the sub-knowing, knowingly under specific provisions.Similar to the fault of negligence in judgment "should have known" of the process, knowing that the presumption to judge whether or not the process is a rational perspective to judge the accused person "should have known", to derive the defendant knowingly or not subjectively. "I should have known" as a very important part of knowing the problem, which can be divided to ascertain and not sure two parts. To ascertain and do not know precisely analyzed in two parts, the process can be drawn on the specific application of the presumption knowingly issues for the development of practices and rules applicable to the time reference.On knowing this issue, the existence of a very similar and the estimated legal system, it is strict liability. Proof Strict liability can be simplified into three stages, "does not have to refute subjective → → no need to prove subjective subjective", is different from the general case the proof from the outset has been fixed in the "need to prove subjective" at this stage. It can be seen that such proof and the presumption is almost the same, the presumption in a demonstration that is, through the first stage of "having to prove subjective" to lower the standard of proof for the purpose of prosecution, through the second phase "does not refute subjective" reach the part of the burden of proof in cases such as proof of knowing whether the purpose of the transfer of responsibility borne by the defendant, in order to achieve the ultimate goal of economic action. Such a "three-stage" proof process, although not so rigorous proof of the syllogism, but knowing that the crack problem of the value of the litigation is enormous.Fourth chapter is the problem of estimating the burden of proof.A very important issue is even presumed core of the problem lies in the proof of the transfer of responsibility, which is different from the general presumption case proved the most outstanding performance. In this regard, I believe that the burden of proof is different from the concept of burden of proof, the burden of proof is presumed not "monolithic", and accordingly the presumption applies in criminal burden of proof "cake theory of distribution"- the burden of proof if the presumption a "cake" in general, at the beginning of the trial judge had been in accordance with the law, the burden of proof under the terms of this objective cut a "cake" handed over to prosecutors, cut another piece of psychosis exemptions burden of proof "cake " handed over to the defendant, and so on and so on. The difference is that the allocation of responsibilities to prove legal presumption is that once completed, there is no follow-up allocation. The fact that the presumption is in multiple completed.It will also What is the burden of proof in an inverted "inverted", go step by step and expand the hypothesis falsification exposition. Which assumes upright is a legal burden of proof with regard to preset the inversion is to change the preset words, from which distribution is "down" approach to understanding the meaning of "fail" issue, then, the current It does not exist in the case of so-called inverted presumption problem. And if we assume an upright bear proof is presented to prove the responsibility of the party and meet the standard of proof, inverted the burden of proof is not originally from the party to prove the opposite direction and reach a certain standard of proof, namely to achieve a "down" from the perspective of the extent to which to understand the "down" problem. Well, it can draw on the legal presumption, the defendant to bear the burden of persuasion. In fact the presumption, the defendant to bear the burden of proof of.Fifth chapter is the studies on proof standard on presumption.In the case of a presumption, the defendant than the general case to assume more burden of proof, the burden of proof should also reach a certain standard of proof. In the legal presumption, the burden of proof in the case has been assigned at the beginning of the trial is completed, thereby requiring the defendant to refute the legal presumption applies and falsification, the standard of proof to refute shall take appropriate beyond a reasonable doubt. In the presumption of fact, the harvest there is a reasonable suspicion is appropriate.In addition, the presumption of fact, there is also an additional standard of proof that the prosecution prove difficult to prove in order to prove that when the transfer of responsibility to the defendant to prove the opposite direction, which should be reached before the transfer standard of proof. This standard emerges as a clear evidence for the Priority selection.Sixth chapter is the presumption of the applicable rules of criminal.Theoretical discussion for understanding the criminal presumption and related issues are important, but more valuable should be formed for the practice of guiding significance presumption applicable rules. Therefore, this chapter will combine the above main conclusions, an attempt to form a shallow presumption applicable rules. Taking into account the presumption of this problem huge and deep, and the author vulgar academic ability, this presumption applies the rule will be limited to within a range of drug-related crime, in order to avoid lengthy, messy and loss, and also the introduction of the case at the beginning of this article has formed to take care of.The presumption applicable rules include the following ten points: First, the concept of the presumption; Second, the presumption of classification; three putative characteristics; Fourth, the estimated value; five putative differences between related concepts; six knowingly apply range; seven knowingly criteria; eight, the collection, examination, judges that the evidence of problems that need attention; nine, the allocation of responsibilities to prove presumption; ten, the standard of proof presumption.
Keywords/Search Tags:Criminal presumption, presumption of fact, knowing, burden of proof, proof standard
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