论刑事推定与证明困难——以利用影响力受贿罪为切入点

On the Criminal Presumption and Proof Difficulty——Take the Bribery Crime of Influence as the Breakthrough Point

利用影响力受贿罪证明的困难限制了其实践操作性,引入刑事推定有利于破解证明困难造成的诉讼僵局。作为证据证明的补充手段,刑事推定在司法证明中具有可用性。但基于推定的或然性本质,应对事实推定的运用和法律推定的创制进行严格规制。推定处于实体和程序的交界处,证明困难的根本解决,有赖于借助推定这一视角反思和改进我国的刑事立法,拉近实体与程序的距离。

The proof difficulty of the bribery crime of influence limites its operation. The criminal presumption is in favor of cracking the litigation deadlock caused by proof difficulty. As the supplementary means of judicial proof, criminal presumption is available in the litigation. But based on the nature of presumption＇ s probability we should also regulate strictly the application of presumption of fact and the foundation of the presumption of law. Presumption is in the junction among the substantive law and the procedure law, if we want to solve the proof difficulty thoroughly, we should rethink and perfect our criminal legislation by shortening the distance between the substantive law and the procedure law with the help of presumption.