Research On The Distribution Of Justifiable Defense Burden

"Where the proof is,where the loss is located" is the classical judgment in the evidence law.In criminal justice,whether the distribution of burden of proof is reasonable or not is closely related to the realization of judicial justice.Compared with the research on the distribution of the burden of proof in other fields,the research on the distribution of the burden of proof of legitimate defense is far from enough in China.Academic circles generally believe that justifiable defense is an exception to the presumption of innocence,and the defendant should bear the burden of proof.In practice,when the truth of the justifiable defense is unidentified.the judge also tends to require the defendant to bear the ultimate adverse risk,for example,the judge tends to adopt the prosecution opinion when the evidence provided by the defendant is different from the prosecution,and the defendant is only the defendant.The reasons are based on the misunderstanding of the nature of legitimate defense lawsuits.On the other hand,it stems from many factors such as the litigation pattern of criminal proceedings in China and the attitude of judges sympathizing with the weak.However,under this rule of burden of proof distribution,the defendant often finds himself in a dilemma of inability to prove that,although our country's laws grant citizens the right to defend themselves,it is difficult to effectively realize this right in the judicial process.At the same time,the burden of proof distribution rules are easy to connive at the prosecution's nonfeasance when collecting evidence,resulting in some adverse consequences.To clarify the distribution rules of justifiable defense burden has become an urgent need in current judicial practice.Through the comparative study on the assignment of justifiable defense proof responsibilities by foreign countries and the actual needs of our country's criminal justice,we can construct the rules for the distribution of justifiable defense responsibilities in China from the perspective of the three parties.First of all,the prosecution should bear the burden of proof of legitimate defense,that is,when the truth of genuine defense is unknown,the prosecution should rule out the possibility of legitimate defense,otherwise the prosecution will need to bear the ultimate risk.Secondly,considering the criminal policy and proof of difficulty and other factors,there is no special case for the defendant to bear the burden of proof,but in an objective case,the defendant may have a realistic proof of necessity.Finally,according to the existing litigation mode and the status of the two sides of the accusation and defense in our country,under the current judicial system,the defendant should not not only require the defendant to bear the burden of proof of justifiable defense,but also strengthen the clarification obligation of the judge in the process of litigation.