无罪推定的外国法溯源与演进

Origins and Evolutions of Foreign Legal Sources of the Principle of Presumption of Innocence

无罪推定在英美法系和大陆法系学者论述里,各有自己的历史渊源,而对这些历史渊源的追溯,恰恰反映了他们各自关注问题的不同。大陆法系国家从应对审前程序中被告人的处遇角度阐释无罪推定;而英美法系国家则为应对中世纪长期存在的,在陈述式审判模式下被告承担证明责任以及诬告、伪证问题,来阐释无罪推定。进入当代以后,两大法系都转入了对审前羁押与无罪推定关系的关注,审前羁押的性质是否为刑罚的问题颇具争议。其背后反映的是国家对未被证明犯罪的人何以有惩罚权,这也成为无罪推定的根本问题。

The origins of the principle of presumption of innocence can be found in the discussions by scholars of both the common law system and civil law systems. These historical sources reflect the different focuses of attention paid by the two different legal systems. Civil law countries explain the principle from perspective of the treatment of the defendant in pre-trial procedures whereas common law countries explain the principle from the perspective of such problems as the defendant＇ s burden of proof in the ＂Accused Speaks＂ trial mode, false accusation and perjury. After entering into the modern times, both legal systems turned their attention to the relationship between pre-trial detention and presumption of innocence. The question of whether pre-trial detention constitutes criminal punishment has been very controversial. The issue behind this question is whether the state has the power to punish a person who has not been proved to be guilty of a crime, which also constitutes the basic issue of presumption of inno- cence.