On Distribution Of Burden Of Proof In Justifiable Defense

Self defense is the legal right given to every citizen by law.However,in recent years,the application of self-defense system in judicial practice is becoming increasingly rigid,which not only leads to the reversal of the results of a series of social hot cases,such as Shandong Yuhuan case and Kunshan Longge case,but also damages the credibility of justice,which is not conducive to encouraging citizens to use the right of self-defense to fight against illegal infringement.The key to the problem lies not only in the introduction of new judicial interpretation in the macroscopic substantive law,but also in the lack of procedural law on the distribution of the burden of proof in justifiable defense.As the saying goes,"Where there’s proof,there’s loss." The burden of proof is not only the requirement of evidentialism,but also the predistribution of adverse consequences when it is proved that the truth of facts is unknown.The burden of proof is generally divided into objective burden of proof in the sense of result and subjective burden of proof in the sense of behavior.Generally speaking,the burden of proof in criminal cases is generally allocated to the procuratorial organs according to the principles of "who sues who proves" and "presumption of innocence".But with the development of judicial practice,in some special cases,the defendant still needs to bear a certain burden of proof.At present,the criminal procedure law only stipulates that the prosecution should bear the burden of proof of the defendant’s guilt,while the justifiable defense is based on its legal nature,independent of the constitutive elements of the crime in the substantive law,and does not belong to the fact of public prosecution in the procedure,so its special positioning directly leads to the difficulty in the distribution of the burden of proof.On the other hand,presumption mechanism is often used in the process of justifiable defense proof.Presumption is a proof method in essence,but it can not only reduce the difficulty of one party’s proof,but also determine the specific distribution of the burden of proof in a certain sense.As for the proof of self-defense,when the defendant puts forward the defense claim of self-defense,that is to say,he admits the basic objective facts.The key to prevent its illegality lies in whether its subjective intention or defensive intention,and the proof of subjective intention is often applicable to the presumption mechanism.Therefore,there is no presumption of natural defense when the procuratorial organ completes the proof of the crime according to the provisions of the constitution of the crime.At this time,whether based on legal presumption or factual presumption,the subjective and objective burden of proof of justifiable defense should be transferred to the defendant.However,due to the weak position of the defendant in the lawsuit,whether the defender should bear the burden of justifiable defense has always been controversial.The choice of value balance further aggravates the distribution of the burden of proof in justifiable defense.Based on the analysis of 276 procuratorial documents and 135 judgments of the second instance,it is found that the distribution of the burden of proof of justifiable defense in our current judicial practice is very disordered.At the examination and prosecution stage,the procuratorate ascertains whether there is a fact of self-defense.Once the proof of guilt is completed,the proof of self-defense tends to be negated in subsequent proceedings.In the current judicial practice,the public prosecution usually bears the burden of proof of self-defense;Judges use their powers to find out whether there is a defense conspiracy,but actually assume the subjective burden of proof of self-defense;The defendant does not bear any burden of proof,but in cases where the facts are unclear to the defence,they often actually take an adverse risk.Therefore,it not only leads to the contradiction of the prosecution to bear the burden of proof and expands the scope of the prosecution’s burden of proof,but also makes the justifiable defense person in the passive position of litigation,and produces a large number of invalid justifiable defense claims,resulting in the waste of judicial resources.Therefore,whether it is based on the principle of presumption,or from the perspective of justice,convenience,efficiency and the balance of interests of the parties,it is necessary to establish the burden of proof system for the right of self-defense of the defendant.However,it is necessary to further clarify the content,legal form,standard and legal consequences of the burden of proof of the defendant in self-defense through legislation.In order to achieve the balance between prosecution and defense,break the dilemma of rigid application of the system of justifiable defense.