Factual Presumption In The Determination Of Defense Intent

In recent years,justifiable defense has been hotly debated,and the difficulty in identifying defense intent is the crux of the difficulty in determining justifiable defense.The intention of defense belongs to the category of subjective thinking,which only exists in the actor’s heart,and there is usually no other direct evidence to prove it,except the confession and justification of the criminal suspect and defendant.The confession and justification of the actor’s defense intentions are mixed with his own benefits,with low credibility and weak proof.Behavior is an activity that is subjective to objective,and subjective intention can be judged by analyzing external behaviors,which provides the possibility of defense intent determination.Factual presumption plays an important role in the determination of defense intent,however,the necessity and legitimacy of factual presumption are questioned.Some people think that only legal presumption is a real presumption.Fact presumption is essential inference.There is no need for the concept of fact presumption.This view blurs the bound between the factual presumption and inferences,without seeing the normativeness and repeated applicability of the factual presumption.Another view is that the factual presumption has no clear legal basis.And it may easily cause the judge to abuse his discretion.So it should be prohibited.This view ignores the positive effects of factual presumption.Factual presumption exists objectively in judicial practice,which helps judges to give full play to their subjective initiative to find out the facts of a case and get rid of the dilemma of proof.It is undeniable that there are many problems in the factual presumption in judicial practice.This requires establishing the principles of factual presumption,regularizing the application of factual presumption,exerting the positive role of factual presumption in the determination of defense intent,and overcoming its negative effects.In the process of identification of defense intent,the appropriate burden of proof assigned to the defendant can arouse his or her enthusiasm for proof,which is of great practical significance in ascertaining the facts of the case,saving judicial resources and improving the efficiency of litigation.China’s existing laws only require the prosecution to bear the burden of proving the defendant’s guilt,but there is no clear provision for the defendant’s burden of proof.Factual presumption will affect the distribution of the burden of proof to some extent.Accurately grasp the burden of proof on both sides of the prosecution and defense,and establish different levels of proof standards for the prosecution and defense,so that the defendant’s proof of defense intent reaches the standard of "reasonable doubt" to better connect the prosecution to the proof standards of "beyond reasonable doubt",which can effectively avoid vague proof responsibilities and blur certification standards for the application of factual presumption.In addition,it is necessary to refine the operating rules for the factual presumption.First,ensure that the process of factual presumption is initiated normally,guarantee the process of refutation of the factual presumption,regularize the process of determining the factual presumption,and promote the orderly conduct of the process of factual presumption.Second,summarize the rules of thumb for factual presumption to determine defense intent,try to avoid the occurrence of similar cases have different judgements,and maintain judicial unity.Finally,publicize the process of factual presumption determines defense intent,strengthen the reasoning and argument of defense intent determination,and standardize the judge’s discretion.