刑事证明责任制度若干问题新探

在中国一元制法庭构造和审判方式中,一般应当采用行为责任与结果责任作为证明责任类型划分的基本概念。在审判空间中发挥作用的证明责任,将会延伸到审前程序中,从而形成侦查人员的辅助性证明责任、被告人的延伸性责任,以及弹劾制侦查构造中侦查机关的证明责任。应当协调检察官客观义务与证明责任关系,以客观义务统制证明责任,同时需防止客观义务论的负面影响。被害人作为公诉案件的当事人,是起辅助作用的控方,应当适度承担证明责任,与检察官的证明责任具有主、辅关系。

Issues Concerning Burden of Proof in Criminal Cases

Since unitary court structure and trial mode are prevailing in China,"liability from act" and "liability from consequence" should be adopted as the basic concepts to classify burden of proof.Burden of proof in the trial may extend to the pretrial stage,imposing auxiliary burden of proof on investigators,extensive burden of proof on the defendant,and burden of proof on the criminal investigative agency in an accusatory investigation system.The relationship between the duty of prosecutors' being objective and their burden of proof should be well handled and burden of proof is subject to duty of being objective.Of course,the reverse effect of the duty of being objective should be avoided.Being a party in public prosecution,the victim serves virtually as a subsidiary prosecutor.Hence,s/he ought to bear certain burden of proof,which is deemed subsidiary one in comparison with that of the prosecution.