刑事证明责任分配规则之重构

Reconstruction of the Distribution Rules of the Burden of Proof in Criminal Procedure

以无罪推定原则为主导的司法环境,在刑事案件争议事实不明时,往往由控诉方承担证明不能的责任。然而,传统的控诉方承担证明责任观念与无罪推定原则并无必然关联,一个追求公平正义、法律真实的司法,必然要独立于一切,还原事实真相。争议事实的存在是司法活动中不可避免的常态,由谁来承担争议事实不明时的责任,要摒弃传统的控诉方承担过重的证明责任,采取被告人承担对自己有利的证明责任,并适时让裁判者介入,均衡控诉方与被告人承担的证明责任,以追求案件真实,维护公平正义的终局裁判。

In the judicial environment dominated by the principle of presumption of innocence, when the disputed facts of a criminal case are unknown, often the public prosecution party shall be facing the unfavorable resuh for the lack of proof. However, the traditional concept of public prosecution parties bear the burden of proof is not necessarily associated with the principle of presumption of innocence. A trial aiming at the real fairness and justice shall be independent of all surroundings, only to recover the truth. The disputes are inevitable in the usual judicial activities. When it comes to bear the unfavorable result, the traditional over - burden of proof on the public prosecution party shall be abandoned. The accused person should undertake his own advantageous proof responsibility and the referee is involved at the right moment to balance the proof responsibility between the prosecution and the accused person, in the aim to purchase the truth, trying to get a final referee.