量刑事实证明问题研究

2012年《刑事诉讼法》将量刑事实和量刑证据纳入法庭审理程序，量刑事实的证明成为量刑程序的核心问题，确立量刑事实的证明规则才能适应量刑程序改革的需要。量刑证据的可采性规则与定罪证据有所不同，具有盖然性的关联性的材料即可成为量刑证据。对量刑事实中的非犯罪构成的犯罪事实应进行严格证明，而非犯罪事实则适用自由证明法则。非犯罪构成的犯罪事实的举证责任由控方承担，并达到排除合理怀疑的证明标准；非犯罪事实由主张者承担举证责任，只需达到优势证据的证明标准。

A Study on the Proof of Sentencing Facts

The Revised Criminal Procedure Law in 2012 requires that judges put sentencing facts and senten- cing evidence into the court. Therefore the facts of sentence become the focus of sentencing trial. As a result, the proof of sentence should be specialized in. There are many differences between the facts of sentence and the facts of conviction. The facts of sentence are classified into two groups：mixed sentencing facts and pure senten- cing facts. The criminal facts that do not belong to the constitution of a crime should be strictly proved ; and the non-criminal facts can be freely proved. The scope of the application of the principle of presumption of inno- cence should be the principle of distributing the burden of proof, and the proof should reach such a criterion that the facts are clear and the evidence is sufficient and reliable;for the non-criminal facts, the principle that the one that advocates bears the burden of proof should be the principle of distributing the burden of proof,and the proof can reach the criterion of preponderance of evidence.