On The Burden Of Proof Of Justifiable Defense

This article on account of three elements system of crime constitution's illegal obstruction function and presumption of illegal function,it is reasonable to investigate the justifiable defense system under the three elements system.In theory,it can maintain the consistency of the system of justifiable defense and the constitution of crime,and can also maintain the particularity of the justifiable defense system;In practice,it is helpful to solve the problems of justifiable defense in the proving area,so as to bring into full play the due effect of the justifiable defense system.This article is divided into three parts.The first part is the general theory,which generalizes the relationship between the theory of constitutive elements of crime and the proof of justifiable defense.In the Anglo American legal system under the theory of two requisites to constitute a crime,the justifiable defense is a defense cause,by the defence responsibility to prove the main,but lower than the bear proof standard of"beyond reasonable doubt",only by the reasonable doubt can constitute a crime in the continental law system;three elements theory,the justifiable defense is considered illegal cause,combination of civil law authority tradition,its proof is mainly borne by the prosecution,but only some of the accused and the defendant knows the facts in favor,the defendant has the obligation to put forward the point of contention,and then by the prosecution of dispute proves to the contrary,if not the favorable disproof,according to the principle of presumption of innocence,make the favorable identification of the defendant.China's criminal theory on the four elements of justifiable defense as crime causes are listed separately in the constitution,to prove the defense establishment,from the criminal elements of the external breakthrough,thus increasing the difficulty of proof,the caused by the unequal power.The second part is the main part of this article,focusing on the reasonableness of the justifiable defense under the system of three elements.A constructive relationship between the three elements of the first,third elements of the system,the formation of a complete open connection,should conform to the constitution of the behavior can be assumed to be illegal,it is this presumption to achieve the three elements of system function for crime,but also makes the criminal procedure smoothly in the procedure;second,justifiable defense as the law negates the subject,not only can realize the consistency of theory,embodies the justifiable defense system designed,can better play the function of the crime of justifiable defense system.Third,justifiable defense under the three element system will help to prove the burden of proof between the prosecution and defense parties,and reduce the burden of proof of the defense.This is the core argument of this article.The third part mainly discusses the problems and solutions that exist in the judicial practice of the proof of the justifiable defense.The main problems are as follows:first,the cognizance of justifiable defense takes the thought of deriving the result from the result,which makes the identification of the justifiable defense deviate.On the one hand,some behaviors which are consistent with the characteristics of justifiable defense are excluded.On the other hand,as long as the result of death occurs,it is easily identified as excessive defense,resulting in the occurrence of misjudged cases.Second,the defenders bear heavy burden of proof.It is mainly combined with the case of "Yu Huan" and the analysis of the trial.Third,murder is not an accurate legal term,which leads to loopholes in the identification of unlimited defense,which is not conducive to the development of the function of the system,thereby reducing the value of justifiable defense system in the function of offense.The solution includes:first,the justifiable defense system in the three elements system under investigation,in the theory of the system of re identification;second,clear the burden and standard of proof of the prosecution and the defense in the criminal law,the justifiable defense proof law.