论文部分内容阅读
刑事证明责任分配的一般原则要求控方承担证明责任,被告人不承担证明责任,除非被告人提出积极的辩护主张;而证明责任倒置则是根据刑事政策或客观需要,将本应由控方承担的证明责任转嫁于被告人承担,如果被告人不能履行则承担败诉后果;很多学者将证明责任倒置误认为是证明责任分配原则中的证明责任移转,进而错误地认为巨额财产来源不明罪系证明责任倒置的典型;刑事证明责任倒置的理论根基是有罪推定,在现代法治环境下也有存在的价值,但必须对其适用进行严格限制。
The general principle of the allocation of criminal burden of proof requires the prosecution to bear the burden of proof and the defendant does not bear the burden of proof unless the defendant asserts a positive defense and the burden of proof is reversed according to the criminal policy or objective requirement and should have been borne by the prosecution If the defendant can not perform, he will bear the consequences of losing the case. Many scholars mistake the burden of proof as the transfer of the burden of proof in the principle of burden of proof, and then mistakenly believe that the source of the huge amount of property is unknown. The typical foundation of the inversion of responsibility is the criminal theory. The theoretical basis of the inversion of the burden of criminal proof is the presumption of guilt. In the modern legal environment, there is also the value of existence. However, its application must be strictly limited.