| The crime of huge amount of property with unidentified source has been controversial since it was founded in 1988.As a sharp tool to punish the crime of corruption,its legitimacy has always been the focus of attention of scholars.Whether there is a contradiction between the crime of huge amount of property of unknown origin and the principle of presumption of innocence and the principle of non forced self incrimination is still controversial.but it is undeniable that no one dares to ignore the significance of its burden of proof,which may not only theoretically subvert the traditional concept of "unitary" distribution of burden of proof that the defendant does not bear the burden of proof,but also,more importantly,the principle of burden of proof Distribution directly determines the practical effect of punishing corruption crimes 。However,the academic research on the burden of proof of the crime of huge amount of property with unidentified source mostly starts from the theory itself and stays at the level of ought to be,few of which carry out practical analysis.Scholars seem not to pay much attention to the scene,problems,reasons and solutions of the burden of proof in practice?The serious disconnection between theory and practice leads to blind practice and empty theory,which contributes to the writing purpose of this paper.By analyzing and sorting out 100 judgment documents from 2010 to now,using literature analysis and empirical analysis methods,this paper comprehensively peeps into the practice of the burden of proof of the crime of huge amount of property of unknown origin,finds and solves the problems existing in the burden of proof of this crime,and actively responds to the theoretical point of view and practical needs.Through the analysis and arrangement of the judgment documents,the author finds that due to the necessary softening of the constituent elements of the crime by the legislature,and the lack of corresponding supervision mechanism,the burden of proof of the public prosecution shows strong randomness,even violates the principle of evidence judgment,and uses statistical methods to prove the family expenditure of the defendant,which makes the defendant lose the right of cross examination.In this regard,we should strengthen the legal supervision of the investigation and public prosecution organs,and require them to fully perform their duties of investigation and verification.In fact,the defendant’s act of explanation has two different natures.If it is to explain the matter that the public prosecution bears the burden of proof,it is to exercise the right of defense,otherwise,it is to fulfill the obligation of explanation.However,the misleading of the theory makes the court not distinguish the difference between the two mentioned above,but unifies the defendant’s explanation behavior as fulfilling the burden of proof,resulting in the improper expansion of the defendant’s burden of proof,even including the legitimate income and illegal income of his family members,which is obviously unreasonable and violates the basic social ethics.In this regard,we should distinguish the nature of the defendant’s explanation behavior through program design.In the process of proof,cross examination and court debate,we should divide the litigation procedure into two parts,focus on the two major controversial focuses of "the scope of the defendant’s explanation obligation" and "whether the defendant’s explanation obligation is completed",and give priority to solving the former.The burden of proof of the defendant is not the same as the theory,in any case,the defendant only bears a single burden of proof.In fact,the court gives different responsibilities to the defendant based on the comprehensive consideration of the nature of the property explained by the defendant,the capacity of proof of both sides of the prosecution and the defense,the defendant’s control over the information and the social effect of the judgment,which may be the responsibility of explanation,the responsibility of presenting evidence,or even the responsibility of persuasion to eliminate reasonable doubt。According to different situations,it is more in line with the concept of justice.Too much attention to systematic thinking can not meet the needs of practice,so we must explore a set of mature theory of distribution of burden of proof in practice。Although the theoretical circle has always believed that there is a direct connection between the defendant’s Burden of proof and presumption,in fact,the court does not think that there is an inevitable connection between the two.The defendant’s Burden of proof actually comes from the explicit provision of "the state staff can be ordered to explain the source" in the criminal law.The point of view that the burden of proof should be transferred by presumption is not only lack of theoretical value of necessityand feasibility,but also difficult to explain the contradiction that the defendant does not need to prove his innocence when the adverse facts do exist,but also needs to prove his innocence when the adverse facts may exist.More importantly,it will blur the concept connotation of presumption as a special method of fact determination.The Seventh Amendment of criminal law not only increases the sentencing level of this crime,but also amends the defendant’s obligation of explanation.Generally speaking,it is enough for the defendant to state the source of property,without stating the legal source,and the income from the violation of laws and disciplines stated by the defendant shall also be deducted.Therefore,it is necessary to amend the contents of the minutes of meeting that only deduct the legitimate income of the defendant.At the same time,due to the lack of distinguishing procedure between the sentencing mechanism and the recovery mechanism,the recovery of the fruits generated by the illegal gains aggravates the penalty of the defendant,which should also be improved accordingly,and the recovery mechanism and the sentencing mechanism should be dealt with separately. |
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