Study On Proof Of Knowing In Intentional Crime

As a starting point for deliberate proven in criminal law,knowing is one of the most important subjective elements in intentional crime.Therefore,it is also one of the indispensable objects of proof in criminal procedure proof.Knowing has the inner implicitness as an inner cognitive state of the actor.Even today,with the rapid development of science and technology,the level of human cognition has been greatly improved,but it is still impossible to directly explore the real thoughts of the actor by some means.Besides,criminal procedure proof is not a kind of free proof process without any constraints,so the road to prove knowing is full of thorns.Through empirical analysis and case analysis,we can draw a conclusion that the difficulty of proving knowing does not lie in the fact that the defendant’s confession cannot be obtained smoothly in most cases,but in a small number of difficult cases that can’t get confessions.In such cases,due to the lack of direct evidence,the difficulty for judges to determine whether it’s or not rises sharply.There are two main reasons for the difficulty of proving knowing: firstly,it’s the inner implicitness of knowing,that is,compared with objective facts,it has the attribute that cannot be observed directly from the outside.Secondly,the formation of confidence mechanism is lack of rationality.This is specifically reflected in the system of identifying details in China,which is mainly aimed at the proof of objective facts but ignores the particularity of subjective facts represented by knowledge in proof.Therefore,we can overcome the difficulties of knowing proof from the following aspects.Firstly,reduce the object of knowing proof,including only the objective aspects of the crime,and exclude the complex causality,so as to fundamentally reduce the burden of proof on judges based on the implicit knowledge.Secondly,further improve the conviction mechanism of criminal procedure.On the one hand,it is necessary to gradually change China’s traditional confirmation and proof mode,provide the rational inference model legitimacy and justification,so that it can change from implicit application to standardized operation,allow the referee to infer the facts of the case by using empirical common sense,and recognize the probability of the cognizance result of knowing.On the other hand,it shall combine big data with empirical rules to make up for the subjectivity and uncertainty of the application of empirical rules with the certainty and relative objectivity of big data so as to enhance the accuracy of knowing proof.In addition,as a special way of proof,although criminal presumption can help to solve the difficulty of knowing proof,but it should also be applied cautiously in judicial practice based on the principle of presumption of innocence and the protection of the defendant’s rights,and the defendant should be given a full right of "reasonable explanation" to refute.