On the presumption applies in the limit of criminal proceedings

Keywords: Rules of Criminal Procedure presumption presumption constraints Abstract: presumptive evidence Law is an important rule, which proceedings for the realization of justice, improve the efficiency and solve the difficulties of proof, have an irreplaceable role. But due to some factors led to the presumption applicable in Criminal proceedings is limited, so the analysis of these constraints, the presumption in Criminal proceedings can be better applied. I. Introduction presumed to be evidence of an important rule of Law, it action for the achievement of justice, improve the efficiency and solve the difficulties of proof, have an irreplaceable role. Therefore, the presumption of evidence as an important method in the judicial practice has been widely used. However, I find that many scholars discussion of the presumption in the field of Civil litigation, and we were unanimous in the presumption that applies in Criminal proceedings should be limited. "legal presumption, in fact, mandatory presumption of fact that the magistrate finds that the presence of ... ..., so the Criminal statutes There are few legal presumption. "[1]" in criminal proceedings requires strict proof way, Jiyong presumption. "[2] Why do scholars have the view, what factors led to the presumption in criminal proceedings restrictions apply? clarify these issues, the presumption of the rules of practice in criminal justice to better play its role is to have some practical significance. based on an understanding of the presumption of this paper, based on comprehensive analysis of limit the presumption applies in criminal proceedings a brief of various factors analyzed, and how the presumption of the rules applicable in criminal proceedings, a point put forward their own proposals. Second, the presumption outlined in (a presumption of meaning and classification of 1, on the meaning of the presumption presumption of meaning, different scholars have different views. Some foreign scholars believe that "the presumption of evidence Law sense, refers to the existence of a fact by the introduction of other relevant facts on the assumption that the basis of the facts by the existence of deduce the existence of the fact presumed. it reflects the fact that the intrinsic link between the two. Typically, the relationship between them has a coexistence. "[3] Studies in Taiwan scholar Li lights that" presumed to be the Law of the term usually refers to a Law or a corollary, the use of the term is intended to express a fact or a fact or a number of facts and the relationship between a number of facts. "[4] the general view of scholars," the so-called presumption is accordance with the law or by the court in accordance with the rule of thumb, based on the fact that inference from the known fact that the presumption of the existence of the unknown and allows the pArties to the contrary is proved to overthrow a rule of evidence. "[5] For the presumption that the laws of many countries have corresponding provisions, including "<French Civil Code>> Section 1349 provides a legal presumption or inference of fact judge the unknown from the known fact that the conclusions. American" <California Evidence Code>> Section 600 (a provisions, the presumption is a fact that the assumption that the facts required by law or fact from another group to draw or be confirmed in the proceedings. Article 282 of Taiwan's Civil Procedure Law also provides that the Court has been clear under the facts, the presumption should permit The authenticity of the facts. While jurists or national legislation, there are different interpretations of the presumption, but everyone understood the presumption is generally the same. The so-called presumption is the basis of the facts by a presumption of fact reasonably infer the existence of an assumption, this assumption can be no evidence or conflicting with it even more powerful by the overthrow of the opposite assumption. 2, the classification of the presumption presumptive classification, there are mainly two views: one is Anglo-American law's "rule of thirds", one is the Civil law "dichotomy." in the common law system, the presumption is divided into: not rebut the presumption, rebuttable presumption and a rebuttable presumption of fact . For the irrefutable presumption, both pArties are not allowed to present evidence to refute, other law enforcement personnel are not allowed to judge, in fact, a law must be implemented, based on its own facts and the presumption does not involve the kind of reasoning the facts. Therefore, it is, in essence, the presumption does not belong to the true sense, as the American scholar Eli Ott said, "Actually they do not presumed, but substantive law." [6] According to the proof of burden of proof different effects rebuttable presumption of law that affect the burden of proof is divided into presumption and permit the presumption of the burden of proof. [7] In Civil law, the presumption the presumption into the law and de facto presumption. legal presumption that legislative are based on the fact that the normal link between to the provisions of the legal form of a fact if it exists, is presumed facts exist B, but as long as there is sufficient evidence to prove the fact that there is no presumption, the presumption is not established. In fact the presumption is the court under rule of thumb, from the known facts, the presumption should prove the authenticity of the facts, because under the logic of a purely judicial experience is, it is also known as the logical presumption. jurisprudence on the presumption of the classification of civil law in general agree with the view , that is presumed to be divided into legal presumption and the presumption of fact. (b presumed role of the theoretical basis and has become an important presumption rules of evidence, and in all countries has been widely used. In judicial practice, To better grasp and apply the presumption rules, we should analyze the presumption of the theoretical basis of emergence and existence, and its efficiency for the achievement of justice and the role of litigation. 1, the putative theory (1 links between things, the universality of human faces the world of all things and phenomena are not isolated, they are all things and phenomena and in the surrounding broad, general contacts. Among the things the general contact, people experience consciousness through the continuous accumulation of between the things found there is a causal relationship. that whenever a phenomenon A occurs, B will inevitably lead to another phenomenon occurs. A as the cause, B as a result. Although the causal relationship between things is not decisive, but In certain cases deviations occur, but the causal relationship reflects a necessity in the development of things, which is formed by a rational human experience. in a pArticular case reflects the deviation of a chance in the development of things, but this do not hold accounts with the status of contingency, it is only something temporary instability in the process of development of the contact. therefore, according to the causal relationship between things, the necessity to understand and apply the presumption as to the probability that is in line with the law of development of things . (2 logical reasoning and rational point of view based on epistemology, the world can understand, and understanding of human beings have the initiative. the logic of human reasoning is an effective tool to understand the world that can lay down the surface of things, and nonessential phenomena, to grasp the inner things, the nature of the property, so awareness of the objective law of development of things. Although logical reasoning with uncertainty to some extent, but the history of mankind in the process of understanding the world, has proved a huge logic role and it is reasonable. things that cause and effect relationship between the inevitability of human use of logical reasoning is the link between knowledge of things as a result. These two theories is presumed to be produced and the basic theory of existence. So be presumed a universally recognized and become an effective and widely applicable rules of evidence. 2, presumed role (1 assigned the burden of proof allocation of the burden of proof is one of the presumed role. Under the presumption rules, the presumption in its favor for pArty, as long as the basis of the facts prove the existence of the presumption to the facts without further proof exists. that is, the presumption that the party remove the burden of proof for the presumption of fact. Meanwhile, the presumption against them for the party concerned, if you want to rebut the presumption, the burden of proving that he based on fact or presumption of fact that the burden of proof does not exist. Therefore, there is the presumption in the distribution of the burden of proof is essentially the role. (2 mitigation and elimination of the difficulties of proof in proceedings on the practice, in some cases The fact is not difficult to check Mingshi to identify, but the fact that these cases have a significant impact on the outcome of the trial, as in succession cases, several of the decedent died in the same incident, they have the time of death the fact that, in practice is difficult to identify, but their time of death are very important for the determination of heirs, in this case, the presumption can be applied to facts of the case, eliminating the difficulties proved to avoid the lawsuit reached a stalemate. It is presumed another important role. Third, the impact of the presumption applies in criminal proceedings limiting factor in a comprehensive analysis of the presumption, based on my view, the presumption in criminal proceedings of the factors applicable to the following: (a presumption of the rules themselves limitations of the limitations of the presumption rule itself is leading to a presumption applicable in criminal proceedings, one of the factors is limited. presumption rule has probability. presumption is based on the causal relationship between human understanding of things based on, but the causal relationship is deciding things, a part of the development process, and can not fully demonstrate the decision making process of development of things. As Lenin said: "cause and effect events in the world is interdependent and universal connection and the link connected to each other, only material development of this link in the chain. [8] Meanwhile, the causal relationship between the diversity and complexity of their own also makes things a causal link between the particular situation will change due to change. Furthermore, the ability of the human perception of the world is limited. Therefore, the presumption that the facts as found by the case of objective truth, there will be a certain distance. the distance itself, the size and complexity of the case, the judge their professional quality and the fact that as a presumption of reliability based have a great relationship. For these reasons, there is inevitably leading to a presumption shortcomings of probability. In other words, the presumption in the proceedings the judge rules facts of the case applies only to proof of probability level. we all know, the Civil and criminal proceedings in the nature of different causes of action in the two procedural law of evidence requires a different standard of proof: in civil standard of proof is required to achieve a high degree of probability, that is, the judge from the evidence Although the formation of the facts will not so sure, but the hearts, including the fact that most likely is very likely that the judge in criminal proceedings, for the standard of proof is to exclude all reasonable doubt, that only the judges of the facts from the evidence obtained is really a crime in order for the defendant of evidence only when the facts of the crime can be identified. from two procedural requirements in the standard of proof, we can see in the Code of Criminal Procedure significantly higher than the civil standard of proof, and presumption probability rules themselves which led to criminal activities in the application is bound to be limited. (b presumption rules conflict with the presumption of innocence is the presumption of innocence in criminal proceedings, any suspected crime or the person subject to criminal charges without a judicial proceeding is recognized as guilty before the law should be presumed innocent or presumed guilty. [9] established the presumption of innocence, the defendant in criminal proceedings to determine the position, making the defendant's legitimate rights are guaranteed, is the Code of Criminal Procedure civilization, a sign of the democratization process. It is the basic principle of criminal proceedings is one. the presumption of innocence includes two aspects: on the one hand, by the complaints authority to provide sufficient evidence to prove that the defendant was charged with the implementation of criminal behavior. On the other hand, the judicial proceedings in accordance with whether the defendant guilty of the crime charged to be identified. Meanwhile, for the presumption of innocence would come out of two principles: first, against forced the defendant against self-incrimination, the second is the Conflict. presumption of innocence of the conflict rules in the following two aspects 1, the first presumption Presumption of qualitative and prejudice, whether legal presumption, the presumption is in fact are determined in advance between the two facts prove that relationship. Once the presumption to be applied investigation and identified the direction of specific facts to prove this relationship due to be finalized in advance. Meanwhile, the qualitative result of this first, so that rules can not be presumed Avoid areas with prejudice, as Montesquieu said: "As a judge, when the presumption, the verdict on the arbitrary." [10] Obviously, this is contrary to the spirit of the presumption of innocence. Because, according to non- Crime presumption, the defendant found guilty without the prior judicial proceeding shall be presumed innocent, and if, in the event of litigation, the judge rules under the presumption of certain acts of the defendant determined that the presumption of guilt of the suspect. To avoid misunderstanding I want to point out, though some scholars as the presumption of innocence, a presumption, I think the real presumption of innocence should be a presumption of substantive rules rather than a rule, as the relationship between the two, limited space, in This I will not repeat them. 2, the allocation of the burden of proof in the former paper I pointed out that the allocation of the burden of proof is one of the presumed role of the rules, it relieves the fact that the party advocates the presumption the burden of proof, while there is no presumption of fact burden of proof shift to the other party. and according to the presumption of innocence in criminal proceedings for the defendant's burden of proof in criminal acts undertaken by the complaints authority, and the burden of proof can not shift, which reflects the criminal proceedings Another principle that a defendant against forced self-incrimination principle. If the presumption in the rules applicable to criminal proceedings, such a situation can occur, accusing authorities claim there is a presumption of fact, the judge shall be determined using the presumption rules, then burden of proof falls on the accused person, and the defendant and because of evidence or proof can not be weak, and will assume the court's adverse consequences for him. In this case, there will be a paradoxical result, on the one hand we stand for presumption of innocence, on the other hand, we also use the presumption rules to deny it. Therefore, the presumption of a conflict between rules and the presumption of innocence is to limit the presumption rules applicable in criminal proceedings other factors. IV, Conclusion Although the presumption in the criminal proceedings when applicable, will be number of factors, but as a proof of the facts of the particular method of proof, presumption of activity in the litigation proved to effectively reduce the difficulties in efficiency of the proceedings, the role of achieving a just action is for all to see . Therefore, the activities in criminal proceedings should not exclude the application of the presumption. However, given the characteristics of the criminal proceedings themselves, I think the presumption in the application of rules, should be some special restrictions. First, to protect the implementation of the principle of presumption of innocence, in criminal proceedings should be avoided legal presumption. Second, the defendant recognized the major facts of the crime presumption rules should not be used, that the presumption in criminal proceedings can be used to determine the innocence, not a single conviction. This and the suspected crime is consistent from the unprincipled. Third, reduce the defendant to prove the fact that there is no presumption of proof standard. has a negative presumption that the defendant, the defendant does not require proof by clear and convincing, and even through the preponderance of the evidence to make this presumption is invalid, the defendant need only the existence of the presumption of reasonable doubt the facts, can lead to the presumption invalid. The analysis that constraints of presumption in criminal procedure Abstract: Presumption of the law of evidence are an important rule, which proceedings for the realization of justice, enhance the effectiveness of the proceedings and resolution of difficult to prove, have an irreplaceable role. However, due to a number of factors led to the presumption applies in criminal proceedings is restricted, therefore the analysis of these constraints can make the presumption in a criminal proceeding be better applied. Key: Presumption Presumption rules Criminal Procedure Constraints Notes [1] Liu Shanchun, Biyu Qian, Cheng Yuk: <<Rules of Evidence>> [M], China Legal Publishing House, 2000 Edition, P278. [2] Ye Feng, Ye Ziqiang: <<constructive sharing of the burden of proof>> [J], Legal Research, 2002 3. [3], [5] cited HENAN POLYTECHNIC Wang Hui Hui: <<evidence law presumption of problems (I>> [J], Henan Public Security College, 2002 2. [4] See Li Xue light: <<Evidence Comparison>> [M], Taiwan Sage Publishing Company, 1992, P249. [6], [9] See Liu Jinyou: <<Evidence Law>> [M], China University of Political Science Press, 2001, P355, P366. [7] He Jiahong, Weiping : <<Foreign Evidence Act select> "(under the [M], People's Court Press, P962. [8] cited in Li Xiulin, Wang Yu, Li Huai Chun editor: <<theory of dialectical materialism and historical materialism>> [M ], China Renmin University Press, 1995 Fourth Edition, P176. [10] cited, XI Jian Lin: <<On the presumption rules of evidence>> [J], politics and law, 2002 3.