Research On Basic Theories Of Criminal Presumption

As part of proving theories, the researches on presumption are far from substantial and profound like other proving theories. In our country (including other countries to some extent), there exists mainly six problems in presumption researches, including inadequate emphasis and research on this issue, little involvement in the proof study textbooks, misunderstanding and misuse of the presumptive concepts, the confusion of the content system of the works, the insubstantial achievement on criminal presumption researches and the lack of thorough analysis of the theoretical bases.In Chapter I, based on the review and analysis from three perspectives of dictionary, legislation and academic research, the author reflects and reconstructs the concept of presumption, trying to tackle the problem from its root. A complete definition of presumption should encompass four aspects, namely, the appropriate main body, applicative mechanism, concept and property of presumption, as well as the status of conclusive legal and factual presumptions. Therefore, it can be defined as a testimonial regulation and method, ruled by legislation or applicative during the judge identifying the facts of a case, to deduce the presumptive facts on the base of the normal relations of different matters. Clarifying the concept, the thesis then discusses the classification of presumptions which is also a process of further and fully understanding the concept. In this part, it mainly analyzes the differences between legal and factual presumptions on properties, appropriate subject, effect, applicable scope, stability of normal relations and influence on the burden of proof as well as the connection that factual presumption is the source of legal presumption to some extent. After asserting the proposition of"what is a presumption", it further discusses"what is not a presumption", namely, the relationships among the concepts of presumption, inference, legal inference, legal fiction, primary-face proof, judicial knowledge and presumption of innocence. Presumption and presumption of innocence are neither in the same scope nor do they contradict with each other.Chapter II explains the theoretical bases of presumption from four angles----legal logic, legal economics, epistemology, and modern discretional evaluation system. From the perspective of legal logic, presumption is part of legal inference and the process of presumption should also obey the common logical principle of inference. There exist five logical relations between prerequisite proposition and conclusive proposition which can also be categorized as"certain relations"and"probable relations". The normal relation that presumption is based on is rightly one of the probable relations, while the factual presumption belongs to"incomplete probable proof". From the point of view of legal economics, according to Mr. Posner's economic analysis theory on law, factual presumption is based on stable normal relations and gives the anti-presumption litigant enough retorting opportunities so as to greatly reduce the cost of error. Meanwhile, the relatively simple proving process and shortened litigious circle enormously reduce the direct cost. There is no doubt that the economic efficiency is completely achieved. From the perspective of epistemology, as a result of the limitation of the proof subject, time and space, proof collection, examination and judgment as well as the restriction of the proving rules, the litigation proof is just relatively knowable. Therefore, some facts of a case can not be completely proved. Then a problem arises here. To settle the struggle, identify the rights and obligations of the litigants of tow sides and realize the penalty right of the nation, the concept of presumption emerges at the right moment. In terms of the relationship between presumption and modern discretional evaluation, the key point of restricting discretional evaluation system is that the evaluation must comply with the experience rules, which is rightly consistent with presumption.As a method to identify facts, presumption has many deficiencies. Chapter III discusses how to regularize the factual presumption incriminal proof. The restrictions to presumption are mainly from two aspects: one is the regulations on the rules of presumption itself, the other is exterior restrictions. The rules for presumption proper are regulated from the following seven aspects: in criminal proof, presumption is the last means to prove the case's facts; basic facts are reliable; normal relation is based on no obvious negative explanations; offering retorting chances to the litigants who suffer from the adverse presumptions; as to the degree of retort, the evidence that makes the retorted facts in an ambiguous state will do; repeated presumption is forbidden; the reasons for the sentence must be publicized. On the side of exterior restrictions, the guarantee of the judge's quality and the employment of collegiate system, instance system and judicial precedent system should be taken into consideration.Chapter IV discusses the relationship between presumption and burden of proof. In British and American proof law, burden of proof is distinguished as two layers, the burden of production and the burden of persuasion. The burden of production means that the litigant is obliged to offer proof to prove that his claims constitute legal dispute that deserves or ought to be judged by the court and causes the judge or the jury to make examination and judgment. This is the first level of burden of proof and also a lower level. The burden of persuasion refers to the responsibility of the litigant to provide proof to make the judge or jury believe that his claims can be established. This is the second level of burden of proof and also a higher level. Once the litigant is unable to take this burden, he has to bear the adverse judgment. The burden of production and the burden of persuasion are different on five aspects, subject of the burden, the conditions of taking burden, the standard of proving degree, legal consequences and stability. In criminal litigation, the burden of proof can not be transferred once settled. Based on this theory and the review on related legislation in American proof law, the author concludes that in the process of criminal proof, legal presumption is the inversion of the burden of proof, while factual presumption is the transfer of the burden of production.