论正当防卫的证明责任——以阶层犯罪论为视角

On Justifiable Defense Responsibility: From the Perspective of the Three-Tier Crime Theory

正当防卫的证明责任问题应区分客观证明责任与主观证明责任两个维度,并将其置于犯罪构成体系之下进行讨论,实现实体与程序的有效衔接。在阶层犯罪论体系逐渐成为中国主流学说的前提之下,通过对阶层式犯罪论的证明责任分配作用、构成要件违法性推定机能以及正当防卫特殊实体属性等理论层面的详尽分析,提出构建中国正当防卫证明责任的具体模式:正当防卫的客观证明责任由被告方承担,即被告方承担正当防卫事实真伪不明时的不利风险。但是此客观证明责任分配格局并不意味着加重被告方的主观证明责任,在举证责任上,被告方原则上只承担正当防卫事由的初步举证负担,达到形成争点程度即可,其后的主观证明责任转移至控诉方,其需承担证明不存在违法性阻却事由的责任,并且基于职权主义调查原则,法院也有义务对正当防卫的部分事实进行澄清,从而保障正当防卫的证明达成。

The question of justifiable defense responsibility should distinguish between the two dimensions of objective proof responsibility and subjective proof responsibility, and put it under the criminal constitution system for discussion, thus forming an effective link between entities and procedures. Through a detailed analysis of the three-tier crime theory system, the ethical presumptions of constituent elements, and the proper defense of special entity attributes, a concrete model for constructing China’s justification for proof responsibility is proposed: the objective proof of legitimate defense is assigned to the defendant. The assumption is that the defendant bears the unfair risk of the fact that the authenticity of the legitimate defense is unknown. However, this objective proof of responsibility distribution pattern does not imply aggravating the defender’s subjective burden of proof. In terms of burden of proof, the defendant in principle only bears the burden of initial proof of legitimate defense reasons, and can reach the degree of dispute, and subjective proof responsibility afterwards. Immediately after it is transferred to the complainant, he needs to bear the burden of certifying that there is no criminal cause, and based on the principle of investigative power, the court is also obliged to clarify some of the facts of legitimate defense so as to ensure that the proof of legitimate defense is achieved.