【作者】 张云鹏；

【导师】 李洁；

【作者基本信息】 吉林大学 ， 刑法学， 2007， 博士

【摘要】 推定是一个程序问题,同时亦具有实体法上的意义。在刑事法领域,推定是以证明的重要的辅助性方法而被适时的运用。推定之于刑事法领域的运用具有重要的实践意义,给予刑事推定的基本问题以理论上的系统、深入且准确的阐释,对指导和规范司法实务中推定的适用大有裨益。本文在揭示推定之实质的基础上,就推定的合理性、推定的程序效力、推定的规制以及推定的适用问题予以论证,认为刑事推定有存在之可能与必要,尤其是犯罪主观事实与职务犯罪认定中不可或缺的技术性手段。更多还原

【Abstract】 Being the auxiliary means of proving, the presumption in criminal is very important in legal practice. However, there is very little attention given to the presumption from the jurisprudence perspective. Judging from above, we should conduct thorough research on the basic principles in with regard to presumption. This dissertation mainly concerns the rationality for presumption, the procedural effect of presumption and the application of presumption on the basis of the discovering the substantiality of presumption. The author holds there exists the possibility and necessity for presumption, especially for the procedural means used in proving the subjective element of crime and the white color crime.There are five chapters except for the prologue and conclusion.In the prologue, the author focus on the theoretical status of presumption in criminal law, specifically speaking, the theoretical status of presumption in criminal law, the relationship between presumption in criminal law and the presumption to crime, the value of presumption in criminal law. As far as the author concerns, presumption in criminal law combines the procedure meanings and substantial meanings; combings. Presumption in criminal law is totally different with presumption to crime and the value for presumption in criminal law is to promote the protection of the legal interests and the fulfillment of social justice. By doing so, the author’s aim is to discover the theoretical and practical value in the presumption in criminal law.Chapter I constitute the following two parts. Section one is about the meaning of presumption. Actually, the complexity of presumption results from the misusing of presumption. After comparing and evaluating coercing domestic and foreign arguments, the author tries to find the nature of presumption through analysis of the constitution of presumption. Also in this section, the author talks about the difference and similarity among presumption and related concepts, such as inference, assumption, and so on. Section two is about the classification of presumption. The author puts forward the difference between factual presumption and theoretical presumption is the basic classification, at the same time, she also introduces the relationship between the two kinds of presumptions.Chapter II focus on the rationality of presumption, which includes three sections. Section I is about the basis of presumption, which is the common correlation among various facts, i.e., the experience. Rule of experience is the result of incomplete experience summarized before and embodies some possible meaning. But on the other hand, possibility can be hold as the justification for presumption. Section two concerns the possibility of presumption. Since the limited ability of knowledge and the special circumstance of proving in criminal law, the probability is substantial in the proving of criminal law, which makes the presumption be possible. Section three is about the reason for presumption. The author argues that the criminal policy is the fundamental reason. To a large extent, there is close tie between criminal law and criminal policy, and the latter cast great influence on the former.Chapter III is related to the allocation of the liability for presumption, the function of which is to alleviate the burden and difficulty for the alleged part. Section I is mainly about the meaning of allocation, the typical arguments and the general principles of the allocation of liability of presumption. In section II the author focus on the effect of allocation. In other words, the author argues that legal presumption is the substantial principle of allocation, by doing which we can realize the reversion of allocation liability. On the other hand, the author put forward that factual presumption has no real effect on the whole process of proving.Chapter IV can be hold as the introduction of setting up the factual presumption. The author holds that factual presumption is based on experience and short of legal regulation, so it is very easy to transformed into some judicial arbitrary. Firstly, factual presumption has its own limitation, which can be hold as the fundamental reason for why we should use law to regulate it. Secondly, we should explore the way by which we set up the regulation. The author thinks about it both from the inner discipline system and outer discipline system. The former is used to set up factual presumption for open application, conservative application and other ways of application. And the latter is mainly be used to train the judge to forming identity ways of thinking.Chapter V is about the application of presumption. The application of presumption should be holds as the starting point and the ends of the researching on presumption. In the context of criminal law, the application of presumption is mostly found in the finding of white collar crime and the subjective part of crime. The author mainly researches on the possibility and the necessity of the application of crime.Conclusion part is about the summarizing and the presentation of the author’s innovative arguments.Concerning researching on presumption is immature in domestic legal circle. So to that extent, this said argument can be regarded as valuable innovation in this area, which includes the following parts: firstly, not limited by the procedure, but thinking from the combination of procedural and substantial ways of thinking. secondly, the authors emphasizes that we should use the presumption as auxiliary means of proving, rather than assumption, inference, etc. thirdly, the author thoroughly talks about the rationality of the presumption in the criminal law and presents the close interrelation between probability of proving and inference. Fourthly, the author pointes out clearly that there is no contradiction between presumption in the criminal law and the presumption of innocence until being proved. Fifthly, the author explains the rules we should obey when we apply the presumption. finally, the author summarizes the rationality of using presumption in proving the subjective element of crime and the white collars crimes.更多还原