Wenxiang Liu, Yashu He

(Zhejiang University Guanghua Law School)

Abstract：

In the absence of regulations, there has been a practical habit and theoretical tendency in China's criminal proceedings to assign the burden of proof of justifiable defense to the defendant. The theory of transferring the burden of proof in justifiable defense attempts to draw on the proof model of active defense grounds in British and American criminal law. Based on the theory of burden of proof hierarchy, it uses the presumption of illegality of constituent elements to transfer the responsibility of presenting evidence to the defendant. However, this viewpoint not only ignores China's criminal procedure model based on authoritarianism, but also confuses the differences between the German Japanese class crime theory and the Anglo American dual class crime theory. The theory of class crime, as a theoretical system that constrains judges' thinking, does not have a presumed relationship between different classes in the sense of procedural law, and cannot invert the burden of proof for illegality and responsibility. Under the principles of substantive truth and presumption of innocence, the burden of proof for justifiable defense should be borne by the procuratorial organs, while emphasizing the litigation care obligation of judges, in order to solve the practical difficulties of judicial proof for justifiable defense.

Key Words：

justifiable defense; proof of responsibility; active defense; theory of class crime; presumption