无罪推定视角下有罪假设合理性实证分析

Empirical Analysis on the Rationality of the Presumption of Guilt from the Perspective of Presumption of Innocence

任何诉讼阶段均需贯彻无罪推定原则,体现无罪推定的精神已毫无争议。然而,对侦查阶段中惯用的有罪假设是否合法、合理,无论实务还是理论界均尚未形成共识。侦查阶段的有罪假设具有合法性、正当性、必要性、阶段性等特征。有罪假设合理性之证成,须从三个方面进行:第一,有假设符合刑事案件的认识规律;第二,无罪推定不同于无罪认定,有罪假设不等同于有罪认定;第三,有罪假设的二元阶层观察。最终得出,无罪推定原则视域下仍应当承认有罪假设的合理性,但需对其现存问题予以系统剖析,以达到自洽的应然状态。

The principle of the presumption of innocence must be adhered at all stages of litigation,and the spirit of presumption of innocence is undisputed.However,whether the guilty assumptions used in the investigation stage are legal and reasonable,no consensus has been reached in practice or in the theoretical field.The guilty assumptions in the investigation stage are characterized by legitimacy,legitimacy,necessity,and periodicity.The justification of guilty assumptions must be conducted in three aspects:first,there are assumptions that are consistent with the cognitive laws of criminal cases;secondly,the presumption of innocence is different from the finding of innocence,and the guilty assumption is not equivalent to the determination of guilt;Binary observation of guilty assumptions.It is concluded that the rationality of the guilty assumption should still be recognized in the perspective of the principle of presumption of innocence,but it is necessary to systematically analyze the existing problems so as to achieve a self-consistent state.