Presumption Of Research In Criminal Law

Presumption is an important part of the criminal procedure law and substantive law, as a phenomenon of the legislation of criminal law, is the origin of the research. China's criminal law and judicial interpretation, judicial interpretative norms legal documents have been identified a considerable number of presumption, it is necessary to its concept of substantive law, the property and the category of, in this paper, through combing and analyzing the present situation of legislation and judicial presumption in the criminal law of the people's Republic of China, in from the perspective of comparative law, comparative analysis, found in China's criminal law presumption of defects and deficiencies, and try to put forward the improvement suggestions and alternative legislative measures, in order for the perfection of legislation for slightly to make meager contribution.In addition to the introduction, this paper is divided into five parts and total nearly 5 0000 words in full, the basic contents are as follows:The first part mainly introduces the general concept, classification of the presumption. Definition of presumption in the criminal law, according to the norm associated relationship between the basic facts and the presumption of fact, the basic facts is presumed to be the facts to be proved, to build the passive constitutive elements through criminal law provisions and allow defendant by evidence to the contrary special rules of criminal law overturned; presumption is legality, refutability and can be applied repeated. And to create different and different estimation for classifying objects based; finally, on the basis of the above study and explain the difference between presumption and reasoning, inference, presumption of innocence and legal fiction.The second part describes the theoretical basis of the criminal law of the presumption, the presumption set out to find the philosophical foundation of the Marxist concept of contact, basic epistemology; then, presumed to be from the connection point with the substantive criminal and proceedings, is powerful means to solve the constitutive elements prove difficult,and both criminal law and criminal procedure law of relations anchored argument criminal law basis of its existence; and finally from the perspective of policy studies. On the basis of analysis and appraisal, the presumption is an important path to implement the criminal policy.The third part belongs to the present status of presumption in criminal law, performance, characteristics and regularity of presumption in criminal law. The legislative part of the estimated performance by the typical presumed cases that the unclear huge property crime, summed characterized in that on the basis of crime fiction, possession crimes, and abstract potential damage, whether they are belong to presume and so on to in-depth analysis, then classifying the presumption of "Criminal Law" in the form of table. In estimating the performance of the judicial interpretation of the relevant provisions of the judicial modeled prescribed drug crimes subjective "purpose" element is typical in cases of judicial presumption of performance and features, and a more comprehensive judicial presumption carding; in the above analysis and on the basis of combing, from the presumption content, structure, presentation and other aspects of its specific characteristics and laws of induction.The fourth part discusses the lack of presumption rules from criminal substantive law and procedural, and then analyzes the structure of part of the presumption rule does not comply with the presumption, the choice of basic facts unreasonable suggests that the establishment of presumption of lack of objective criteria, optional the gender is big; then from Legislative and judicial presumption in ambiguous terms and the interpretation of the presumption term anomie exist vague expression anomie and other issues; and finally to the judicial presumption ultra virus legislation, analyzes its invasion of the legislative power.The fifth part explains the perfect of presumption rules, starting from the principle of presumption of setting, through to the rules of presumption of the whole building, for the return of the presumption rules that is advantageous to the criminal suspect and need to build presumption rules about other objects, and puts forward suggestions on the improvement of the rules of presumption of entity; then, in order to refute the rights of the perpetrator to build procedural rights and other procedural safeguards designed. Finally, the presumption created the body, language and expression, the basic facts of choice to discuss how to regulate aspects of the putative creation.