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On The Principle Of “In Dubio Pro Reo”

Posted on:2017-02-27Degree:MasterType:Thesis
Country:ChinaCandidate:Y H HanFull Text:PDF
GTID:2336330488972541Subject:Procedural Law
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With the abolishment of suspicion penalty and temporary acquittal, the principle of “in dubio pro reo” has been settled by Germany customary Law. After that, the criminal procedure law of Japan absorbed the principle of Germany Law and named the principle of “in dubio pro reo” as “iron law”. The essence of the principle of “ in dubio pro reo” is a kind of judging principle, which means when the judge has questions about the facts, he needs to make the decision which is beneficial to defendant. The doubted fact is regarded as the substantive facts. Generally, it’s impossible that the principle of “in dubio pro reo” is suitable for procedural facts. In China, there is no exact concept of “in dubio pro reo” in criminal procedure, so it is possible that the judge choose to make a flexible verdict which may violate the requirement of procedural justice, infringe defendant’s right, and bring about misjudged case. Therefore it is essential to confirm the position of the principle of “in dubio pro reo” in our criminal procedure and completely eradicate the flexible verdict.This article will be divided to 5 parts excluding introduction and conclusion.The first part: summarization of the principle of “in dubio pro reo”. According to the definition of this principle from German, Japan and Chinese Taiwan, the principle of “in dubio pro reo” can be defined that after all the evidence investigations are exhausted while the judge still have doubts about the fact, judge should make a decision based on defendant’s benefit. It is disputed if the principle of “in dubio pro reo” is directly came from the concept of “in dubio pro reo” in Roma’s law. It is generally acknowledged that this principle was confirmed through Germany’s customary law and with the abolishment of suspicion penalty and temporary acquittal. The principle of “in dubio pro reo” can be regarded as supplement of the regulation of evidentiary adjudication In the field of procedural law and improve the principle of “suiting penalty to crime and criminal responsibility” in the field of substantial law.The second part: the range of application of “in dubio pro reo”. The principle of “in dubio pro reo” could only be used on doubted facts, not apply to resolve the application problems of laws. In the aspect of substantive facts, the doubted facts primarily include constitutive requirement of crime, the fact which can affect spacious or severe in punishment and limitation. In the aspect of procedure, it’s universally speaking that there is no way to use the principle of “in dubio pro reo”, but there exist some exceptions. For example, Supreme Court of Japan rules that the principle can be used on the stage of investigating the rationality of retrial. Apart from that, few learners approve this principle can apply to some special procedural facts in Germany.The third part: the principle of” in dubio pro reo”and “selective determination”. Selective determination means that when the judge plans to confirm the facts with two possibilities which do not exist hierarchical relation, the judge need to choose the one of the possibilities of fact which is beneficial to the defendant. From the theoretic perspective, some people hold the opinion that “selective determination” is an exception of “in dubio pro reo”. Some others believe selective determination violates the principle of “in dubio pro reo”, for this reason, it is unreasonable. Considering the perspective of benefit distribution and the legitimacy of result, this article agrees that the existence of selective determination is necessary.The last part : “in dubio pro reo”and criminal procedure in China. Even though there are some principles, like “presumption of innocence”, “the principle of legality”, “the principle of suiting penalty to crime and criminal responsibility ”, reflect the ideology of “in dubio pro reo”, there isn’t a whole system of the principle of “in dubio pro reo” in China. This is the reason why lots of flexible verdicts happened in practice. Ostensibly, “flexible verdict” not only achieve the concept of punishing criminals, but also carry out the requirements of the policy of “killing little and killing carefully”. But actually, it violates the procedure justice and entity notarization and infringes the legal interest of defendant. In reality, judge should make judgment according to the principal of “in dubio pro reo” and completely eradicate the flexible verdict.
Keywords/Search Tags:“in dubio pro reo”, selective determination, flexible verdict
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