The Response To The Phantom's Defense

In order to alleviate or even exempt oneself from criminal responsibility,the criminal defendant often raises some plausible justifications,but it is difficult to prove the truth in practice.A "ghost" which is difficult to verify tries to mislead the judicial personnel,make wrong conclusions and escape from the sanctions of the law.This paper points out that there are many ghost defenses in practice.Every person who engages in criminal prosecution will encounter them and will be helpless in many cases.The accurate identification of the concept of ghost defense points out that the general defense should be distinguished from ghost defense.The ghost defense actually advocates that the criminal act was committed by someone else,not by the defendant.Some scholars directly equate the ghost defense with the positive defense,but the positive defense is the defense against the constitutional elements other than the proper,while the ghost defense is the negation of the subject of crime,also the negation of the constitutional elements of crime or the essential elements of crime.Generally speaking,the defendant who put forward the ghost plea is saying that this is not what I did,and the "positive plea" is not at the same level as the above plea.By defining the ghost plea accurately,we put forward how to allocate the burden of proof when facing the ghost plea.By using comparative method and learning from foreign experience,this paper creatively re-structured the theoretical mechanism of burden of proof allocation.Based on the simple division of traditional burden of proof behavior and results,and considering the standard of object of proof,the object of proof was divided into essential facts and other facts to be proved,and the burden of proof was divided again.At the same time,we analyze the problems existing in the distribution of criminal burden of proof in our country.The defendant bears less burden of proof and can not realize the value of litigation efficiency.The author intends to solve the above problems through two ways,namely,establishing a limited presumption of fact system and determining the defendant's limited burden of proof system.In view of the mechanism of presumption of fact,this paper starts with the concept of presumption of fact,and points out that presumption of fact has its existence value and can not be totally denied.At the same time,it points out the limitations of the presumption of fact,and then puts forward the principles and conditions that should be adhered to when applying the presumption of fact.In view of the limited burden of proof of the criminal defendant,we should affirm the rationality of the limited burden of proof of the defendant,focus on the analysis of the relationship between the burden of proof of the defendant and the presumption of innocence principle,and draw the conclusion that the limited burden of proof of the defendant does not break through the presumption of innocence principle.At the same time,the specific circumstances and boundaries of the defendant's burden of proof are analyzed.Finally,the specific application of the defendant's burden of proof in our judicial practice is discussed At the same time,according to the case mentioned in the introduction of this article,combined with the analysis and discussion of this article,the author how to deal with the case.