论推定及其理性控制——以《关于办理侵犯知识产权刑事案件适用法律若干问题的意见》为切入

Presumption and Its Rational Controls: Based on the Analysis of “Interpretation on Several Issues of Concrete Application of Law in Handing Criminal Cases of Infringing Intellectual Rights”

作为一项传统的政策工具,近年来推定在刑事领域的地位颇有上升的趋势,两高及公安部《关于办理侵犯知识产权刑事案件适用法律若干问题的意见》中对推定的使用尤其具有一定的代表性,需要引起重视。上述规范性文件以设置推定之名,行改变构成要件之实,实际上变相侵蚀了立法权,存在突破罪刑法定和无罪推定刑事领域两大基础性原则的风险。对推定的使用进行理性的控制,基本途径在于区分犯罪构成要素同积极抗辩理由,只有当抗辩事由属于真正的积极的抗辩事由时,将说服责任施加于被告人身上才可能具有正当性;如果确因刑事政策的需要必须设立推定,那么也应该对该推定的合法性进行严格的检验。

As a traditional policy tool, presumption is increasingly used in criminal law recently, which is represented by ＂Interpretation on Several Issues of Concrete Application of Law in Handing Criminal Cases of Infringing Intellectual Rights ＂ drafted by Supreme People＇ s Court and Supreme People＇ s prosecutorial organization, and we need to pay attention to it. The former normative documents actually change the legal constitutive requirements and violate legislative power by use of presumption and there is a risk that the two basic criminal law principles, conviction and penalty according to law and presumption of innocence, will be violated. We should rationally control the use of presumption by way of discriminating constitutive elements of crime from positive defenses in that it＇ s reasonable to put burden of persuasion on the defendant only when defenses are positive. If presumption needs to be used due to criminal policies, the legiti- macy of presumption should be strictly reviewed.