The Study On Judicial Proof Of Affirmative Defense

Originated in the US,"Affirmative Defense" in American Law refers to the defense of the defender in the trial by the legal or the defendant’s original reasons,exemption or other reasons for the content and the ability to form a new factual point of defense.Once this defense turns successful,it can make the defendant innocent or to some extent reduce the crime.In the US the defender needs to share some liability of proof for an "Affirmative Defense".Although there is no such term as "Affirmative Defense" in China’s legislation,there are very similar defenses in our judicial.practice,such as the defense of legitimate defense and the defense of the alibi.After this defenses were raised,how does the judicial proof of such defenses work is a great controversy theoretically in China.The existing legislation does not give a complete set of judicial proof model for such defenses,so in judicial practice the judicial proofs of such defenses are varied which have no uniform standards.It is not only unfavorable for unveiling the truth of the case to identify,but also not conducive to the protection of legitimate rights and interests of the defendant.Therefore,it’s necessary to build unified rules of judicial proof of "Affirmative Defense" as soon as possible.This article is divided into five parts.The case of Xia Junfeng is proposed as an introduction.Through careful analysis of the judicial proof activities about "legitimate defense",this article introduces the main concern of this article-the "Affirmative Defense".The first chapter is about the define of the "Affirmative Defense".Since the "Affirmative Defense" was originated in the US,I first introduced the"Affirmative Defense" in American Law,and then define what is Affirmative Defense in a broad sense.Because there are certain limitations when defined the affirmative defense in American Law,I call it " affirmative defense in a narrow sense".Moreover,I define the "affirmative defense in a broadest sense" from another angle,in order to cover all affirmative defenses which maybe raised in the judicial practice.The second chapter is from the perspective of comparative law to study the judicial proof of affirmative defense outside the domain.The US is a typical country which has adversary system,and Germany is a representative country which has the authority principle lawsuit pattern,so this part is about the study of relevant legislation and judicial practice of the affirmative defenses in the US and Germany.Then,we come to the conclusion about the trends of judicial proof of affirmative defense in these two law systems and get some inspirations at the same time.The third chapter is about the study of legislation,theoretical controversy and judicial practice of the judicial proof of affirmative defense in China.The common mode of affirmative defense in China’s judicial practice is concluded mainly by collating and analyzing related cases.In the last chapter,I try to put forward the basic ideas of the new rules,which are about judicial proof of affirmative defense after having a clear understanding of the definition of affirmative defense.This rules are based on the judicial proof mode of the law overseas and the current situations and problems of the judicial proof of affirmative defense in China.