Research On The Allocation Of Burden Of Proof In Criminal Justifiable Defense

The distribution of justifiable defense burden of proof has the double connection of substantive law and procedural law.The claim responsibility,burden of proof and burden of persuasion are inseparable from the theory of crime constitution.The claim of liability in criminal proceedings rests solely with the prosecution,It revolves around the theory of crime constitution,The burden of proof takes the crime constitution theory as the core,The persuasion responsibility focuses on the crime constitution theory.In procedural law,The logical starting point of burden of proof is to claim responsibility,Both sides of the case have the burden of proof,The burden of persuasion determines the risk of a case.Justifiable defense has different position in different theories of crime constitution and different distribution scheme.To clarify the internal relations of justifiable defense burden of proof distribution,it is necessary to combine China's existing judicial system and criminal litigation mode,Find out the most suitable theory of crime constitution.The three-stratum crime theory system of the continental law system puts justifiable defense at the level of "illegality",which can provide substantive legal basis for the distribution of justifiable defense burden of proof.In common law system,justifiable defense is regarded as the essential element of crime,it can also provide substantive legal basis for the distribution of justifiable defense burden of proof.The theory of four elements of crime in China adopts the Soviet union and Russia plane coupling structure without "crime" elements,it is not in the theory of crime constitution to classify justifiable defense as excluding criminal cause,it can not provide substantive legal basis for the distribution of justifiable defense burden of proof.Chinese scholars put forward various views to solve this problem,Among them,"crime of any constitutive element" attempts to solve the crime of justifiable defense by explaining the current crime constitution theory."The object of crime theory" includes justifiable defense into the four elements of the crime constitution theory of the object of the crime to partially solve the problem of the absence of substantive law.The theory of "borrowing reconstruction" refers to the results of the burden of proof of eliminating criminal causes by referring to the two legal systems,taking its essence to prove the burden of proof of the exclusion of criminal causes in China.None of the above three views has solved the problem of the absence of legitimate defense substantive law from the root.In terms of substantive law,analysis from the four elements of crime constitution theory itself,In China,the combination of the four elements of crime constitution theory and the exclusionary cause fits well with the dual level crime theory system of Anglo-American law system.Procedural law,After introducing the litigant mode of Anglo-American law system and issuing guiding casesby the supreme people's court to standardize some cases,the existing system of our country accords with the double-level crime theory of common law system,Therefore,the absence of the substantive law of justifiable defense burden of proof can be solved by referring to the dual-level crime theory system of Anglo-American law system.The distribution of justifiable defense burden of proof is divided into two levels: "explicit" burden of proof and "implicit" burden of proof.The first level is the level of the prosecution's explicit burden of proof,That is to say,the prosecution should bear the burden of proof in the full sense of the defendant's intentional crime.The second level is the level of the prosecution's implicit burden of proof,this level of proof is activated when the defense presents evidence that it is justifiable defense,The defense's standard for justifiable defense is reasonable doubt(30% authenticity).The judge can use the "free heart evidence" system of common law system to judge the evidence of both sides.The defense argues that the burden of proof standard of justifiable defense is not required to verify.