论正当防卫案的证明责任

On the Burden of Proof in Self-defense Cases

在涉及正当防卫问题的案件中,待证事实往往具有一定的模糊性,使司法裁判者面临两难的选择,甚至出现了"同案不同判"的结果。要解决此类司法裁判的难题,就要明确正当防卫的证明责任,而适用证明责任倒置是最佳选择。具体说,被告方针对公诉方的故意伤害等犯罪指控提出正当防卫的事实主张,就要承担初始的证明责任,然后公诉方要承担证明被告人的行为不构成正当防卫的责任。如果法官认为该事实不清,就要判定被告人的行为属于正当防卫。

In cases relating to the claim of self-defense,the facts for proof are often with some ambiguity.Therefore the judges are facing the difficulty in finding the facts,and even resulted in divergent results in similar cases.In order to solve this difficulty in judicial proof,it is necessary to clarify the allocation rules for the burden of proof in self-defense,and it is a good choice to reverse the burden of proof.Specifically speaking,when the defendant makes a self-defense claim against the prosecutor’s charge of intentional injury,etc.,the defendant shall bear the initial burden of proof,and then,the prosecutor shall bear the burden of proof against the defendant’s self-defense claim.If the judge finds that the facts are not clear,he or she shall make a judgment for the defendant’s self-defense.