论神示裁判制度中被告人的“证明责任”

On the Accused's Burden of Proof in Mediaeval Trial by Ordeal

宣誓决诉、水审、火审、决斗审都是欧洲中世纪神示裁判的方式。这些裁判方式都属于"单方证明"模式,与现代意义上的证明模式有天壤之别。为了考察神示裁判程序中被告人的诉讼地位,有必要借用现代证明责任理论来分析神示裁判制度中被告人的证明责任。通过分析可以看出,神示裁判制度实行有罪推定,被告人在诉讼中要承当证明自己无罪的责任。

In the Middle Ages, trial by ordeal includes trial by oath, trial by water and trial by battle. They introduce an one-proof mode which is greatly different from today＇ s mode of proof. In order to understand the accused＇ s status in trial by ordeal, this article will explain the accused＇ s burden of proof in virtue of the theory of today＇ s mode of proof. In the Middle Ages, presumption of guilt was adopted in trial by ordeal, and the accused must purge himself by taking an oath, enduring all kinds of torments and fighting a duel.