The Study On The Standard Of Proof Concerning Sentencing Facts

The focus of criminal action has always been on identification of the fact that the defendant is convicted. Sentencing procedure is affiliated to conviction procedure. Therefore, the existing standard of proof is mainly set according to the conviction fact. Along with the standard reform in sentencing procedure, especially the establishment of relatively independent sentencing procedure in 2010, the problem about proof standard of sentencing fact has gradually been emphasized. There spring up a lot of academic documents about sentencing proof. Meanwhile, there are a lot of academic viewpoints. The sentencing evidence in judicial practice has also aroused the strong interest of defendant, plaintiff and judge. Thus, it is gradually applied and adopted in court hearing. However, no matter theoretical study or practical operation, related problems about proof standard of sentencing fact remain to be deeply studied. This paper based on the establishment of relatively independent sentencing procedure, related problem about the proof standard of sentencing fact in China are analyzed to further propose concrete suggestions for improving proof standard of sentencing fact in China.The body part of this paper includes five sections:Part I analyzes the status of proof standard norms of sentencing fact in China. In this part, the proof standard norms of sentencing fact in China is mainly analyzed with the conclusion that the proof standard of sentencing procedure is relatively vague and even deficient, which is mainly represented by three aspects including no final conclusion whether conviction and sentencing proof standards are same, fail in distinguishing the proof standard death sentence and common cases and lack of proof standards for mild criminal fact.Part II analyzes the application situation of proof standard of sentencing fact in China. By carefully reading over 350 criminal judgment documents and combining his internship experience, the author finds that standard of proof of death sentence in judicial practice of death sentence case is that �the evidence is reliable and sufficient � while the loose standard is adopted for sentencing of pure mild criminal fact. The standard of proof of non-pure pure mild criminal fact in court hearing of common criminal case can be basically identified as �the fact that the evidence is reliable and sufficient� and the pure mild criminal fact is obvious grasped more loosely than the non-pure mild criminal fact. Besides, it's found that the benefit doesn't inevitably belong to the defendant in case of doubts about the criminal fact in practice.Part III discusses the academic viewpoints of China's academic circle on standards of proof of criminal fact and analyzes them one by one. According to the theory of standards of proof of sentencing fact, it could be generally divided into three categories, namely unitary, binary and pluralism proof standard theory. Unitary proof standard theory states that the standard of proof of civil procedural law can be applied to the finding of sentencing fact for the proof principle that �the one who claims shall put to the proof� is followed in sentencing procedure. Standards of preponderance of evidence or high degree of probability also can be applied. According the viewpoint of binary standard of proof, preponderance of evidence can be applied to mild criminal fact while higher standard of proof or �reliable and sufficient evidence� or �elimination of rational doubts� can be applied to serious criminal fact. Pluralism proof standard assumes that the hierarchical pluralism proof standard could be built according to the nature of the case and difference of sentencing factors.Part IV investigates the theories and practice situations about proof standard of criminal fact abroad. Firstly, the criminal proof standards of Anglo-American law system are analyzed. Secondly, those of continental law system are studied. Lastly, through comparative study, it's found that the two law systems have same attitude towards problems about proof standard of serious and mild criminal facts, but the Anglo-American law system conventionally execute the decentralized court hearing mode, so there are lot of theories about sentencing proof standard. However, the sentencing of continental law system is reliant on conviction, so there are scattered and unsystematic studies of the problems about proof standard of criminal fact.Part V proposes the concrete ideas about improving China's proof standard of criminal fact. Through discussions in the former four parts, it could be known that the hierarchical and diversified proof standard of criminal fact should be built according to the nature of case and difference in criminal factors. Final proof standard for death sentence in criminal case can be determined as �reliable and sufficient evidence�. The problems about proof of mild criminal fact in death sentence case should be emphasized. As for the pure criminal fact that the defendant is given a lesser punishment, the proof standard can be set as preponderance of evidence. As for pure criminal fact that the punishment could be mitigated, the distinct and persuasive standard can be adopted. In common criminal cases, �reliable and sufficient evidence� can be used for proof of criminal fact while the corresponding proof standard should be set for the mild criminal factor to distinguish statutory and discretionary sentencing circumstances. Preponderance of evidence shall be applied for discretionary sentencing fact while the distinct and persuasive standard should be applied for statutory sentencing fact. Lastly, no matter the death sentence cases or common criminal cases, when dealing with the problem about affiliation of benefit of doubts about criminal fact, the principle of being favorable for the defendant should be observed except the deeming of absent.