The Study On The Ghost Defense In Criminal Procedure

In recent years, Protection of defendants' rights in criminal procedure advanced to a new higher level, which is a remark of long term development of rule of law in China. However, respecting and protecting defendants' rights does not mean that we loosen the main policy of “Crime fighting”. “Ghost Defense”, originated from judicial practice of Taiwan, received lots of attention for its imbalance problem between human rights protection and crime fighting induced by uncertainty of burden of proof.Since authenticity of truth arisen from the defense is hard to verify, which may be a tough question for prosecutors and judges once the defendant brings it up in practice. Technically, the issue of proving only exists among prosecutors, defendants and judges who attend the trail, so author mainly study on the “Ghost Defense” issues which happen in trail. And puts forward the construction of crack mechanism towards the "Ghost Defense". The body includes the following four parts:The first part mainly analyzes the concept and classification of “Ghost Defense”. Firstly, it summarizes different definitions of “Ghost Defense” in the theory circle of our country, and personal opinions are put forward. That's, there is a "Ghost Defense" in two aspects composing crime, and thus the definition of the concept should be unbiased. Secondly, starting from the two aspects of the “Ghost Defense", combined with practical experience, it sums up the different types, negative component elements and positive defense.The second part analyzes the typical experience of the "Ghost Defense" in different foreign law systems. Firstly, it reviews general rules of distribution of evidential burden under litigant lawsuit mode with British and American ones as the representatives. It found the crack mechanism towards "Ghost Defense" by Britain, America and France, namely the burden of proof shared by the prosecution and the defense: the prosecution should bear the burden of persuasion about everything constituting the crime, while the defendant should bear evidence-providing burden in some cases and the burden of persuasion about different defenses. Secondly, it reviewed typical practices that encounter "Ghost Defense" under authority dominant litigation model in mainland of China and found countries such as Germany and France weakened the burden of proof of the prosecution and the defense, mainly with the way that the judge investigated in accordance with the facts into “Ghost Defense” of the defendant.The third part summarizes three different approaches of Chinese judicial practice in dealing with "Ghost Defense” through case analysis ", and points out problems. The first is the direct confirmation of allegation of fact by method of presumption of laws and the transfer of proof responsibility to defendant who put forward the "Ghost Defense". The correspondence problem is the limited scope of legal presumption, doubts about the validity; the second is the falsity of defendant's plea with the use of logical reasoning. The corresponding problem is inadequate reasoning, insufficient reasoning elements in specific cases and there isn't enough reasoning illustration in China's judgment; the third is the denial to the defense for the reason of the absence of evidence provided by the defendant. The problem is that the defendant is required to face double disputes in theory and practice such as the conflict with the principle of presumption of innocence, and the ability of defendants in our country is low.The fourth part puts forward the construction of crack mechanism towards the "Ghost Defense". Combined foreign experience with Chinese practice, it thinks that the defendant should give evidence for the "Ghost Defense", and bear the adverse consequences of the obscure fact. By means of further exposure to relationship between the defendant's burden of proof and the principle of presumption of innocence, it points out that the two theories are not contradictory in theory, which further puts forward the construction to cope with the “Ghost Defense” should be with relevant systems in China. Two forms that the "burden necessity" under the defendant's burden of proof system and the responsibility to provide evidence respectively defuse the "Ghost Defense” one by one.