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A Research On The Distribution Of Burden Of Proof In Criminal Proceedings

Posted on:2018-10-31Degree:MasterType:Thesis
Country:ChinaCandidate:H W YangFull Text:PDF
GTID:2346330515453476Subject:Litigation law major
Abstract/Summary:PDF Full Text Request
Due to the inheritance of criminal proceeding legislation,the notions of burden of proof and the responsibility of attestation have been assimilated in legal circle.However,in the juridical practice,the common connotations of burden of proof have two layers.The first layer connotation is subjective burden of proof,which refers to the behavior that the subject of action avoids to take legal responsibilities unfavorable to litigation consequences by listing proof to attest his litigation claims,interpreting the behavioral burden and persuasive burden of the burden of proof.The second layer connotation is objective burden of proof,which refers to the behavior that the party proposing litigation claims shall take legal responsibilities unfavorable to litigation consequences in case that the facts in action could not be proved and there is unclear and unknown truth,interpreting the consequential burden of the burden of proof.The author thinks the subjective burden of proof is intrinsic,which is an essential responsibility for the party holding litigation claims to actively attest in actions;while objective burden of proof is different.The objective burden of proof refers to the unfavorable litigation consequences possibly undertaken by the subject of action with burden of proof in case of unclear and unknown truth occurred.In criminal proceedings,the distribution principle of burden of proof decides which party shall undertake the burden of proof.The standards of attestation in criminal proceedings could influence the scope and degree of subjective burden of proof,and could decide the risk of objective burden of proof undertaken by litigation subjects,which will influence the trial results of judges and the progress of proceedings.What shall be noted is that,as the gauges for the judges to settle lawsuits,the distribution principles of burden of proof and the standards of attestation in criminal proceedings are existing prior to lawsuits,and different cases could be applicable under different distribution principles of burden of proof and standards of attestation,which will not be changed as specific details of cases,resulting in the judge's “inner conviction” on the basis of objective facts and the standards of attestation,and then the judge will declare the legal responsibilities according to the distribution principles of burden of proof in criminal proceedings.Therefore,after making clear the connotations of burden of proof,it can be found that the standards of attestation,the distribution and objective burden of proof are closely related.In the ancient Rome's Law of the Twelve Tables,the distribution principle of burden of proof “who proposes,who proves” is initially put forward.This theory is carried on and innovated in Anglo-American Legal System and Continental Legal System.The interest equilibrium theory and layered burden of proof theory have become the popular theories at present.The facts to be proved theory,classification of legal requirement theory,Rosenberg's norm theory,and probability theory,etc.appear successively in Continental Legal System.Based on China's reality and taking example by Anglo-American Legal System and Continental Legal System,China has established the current distribution system of burden of proof in criminal proceedings consisting of the general principles such as distribution of burden of proof and the special principles such as transfer of burden of proof,reversion of burden of proof,and the reduction of the accusing party's burden of proof by properly introduction of plea bargaining system.But in the special principles of burden of proof,there are still some problems concerning the distribution theory of reversion of burden of proof,for example,some scholars may think reversion of burden of proof is just a special form of transfer of burden of proof.Therefore,the author makes discrimination on the connotations of reversion of burden of proof and transfer of burden of proof from four aspects,and finally puts forward the segmentation theory of reversion of burden of proof and the advice of establishing reasonable binary distribution system of burden of proof.When studying on the burden of proof of various litigation subjects in various phases of criminal proceedings,the author discovers that the standards of attestation is closely related to the distribution of subjective burden of proof and the assumption of objective burden of proof.To put it simply,the standards of attestation are mainly used to weigh whether the proposed evidence of litigation subjects could better support the litigation claims,while burden of proof is used to judge who should undertake the unfavorable litigation consequences in case of unclear facts occurred.The level of standards of attestation will decide the scopes and degrees of subjective burden of proof,the occurrence rate of unclear facts and the potential of whether the litigation subjects would undertake the objective burden of proof.Nowadays,although the wordings of “beyond a reasonable doubt” in Anglo-American Legal System and “inner conviction” in Continental Legal System are different,the goals of attestation of both are the same.The only difference is that Anglo-American Legal System puts particular emphasis on objective existence while the Continental Legal System leans on free evaluation of evidence.Therefore,they two could be combined for the purpose of establishing our country's diversified standards of attestation of burden of proof in criminal proceedings.In addition,by analysis on the scopes of burden of proof and standards of attestation of probably involved litigation subjects(including public security organs,investigation and prosecuting apparatuses,adjudication organs,private prosecutors,criminal suspects or defendants and their defenders)on the phases of arresting,reviewing and making decisions of prosecution,court trial and guilty verdicts,the author discovers that the existing standards of attestation in China could not be completely applicable for all phases of criminal proceedings.Instead,we should make specific analysis of specific cases,comply with the rules of epistemology,and establish the standards of attestation from easy to difficult and complicated step by step.Diversified standards of attestation in criminal proceedings could not only improve the efficiency of litigation phases prior to court trial,but also reduce the burdens of collecting evidence for public security organs and private prosecutors,which is of great significance to perfect our country's distribution systems of burden of proof in criminal proceedings.
Keywords/Search Tags:Subjective burden of proof, Objective burden of proof, Reversion of burden of proof, Standards of attestation in criminal proceedings
PDF Full Text Request
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