无罪推定原则之辨正

无罪推定原则被普遍赋予的含义是将判决之前的被指控人设定为无罪之人,此为保护性的暂时的实体设定,不存在反驳问题。贝卡利亚首倡的并非无罪推定原则,只是对有罪推定的否定。作为证明责任规范的无罪推定不是无罪推定原则的普遍含义。不受强迫自证其罪原则部分地源于无罪推定原则的要求。中国刑事诉讼法第12条之义既非无罪推定,亦非禁止有罪推定,只是禁止在判决之前对被指控人的犯罪作肯定判断。在法治原则下无罪推定不是必须的法律技术设计。

Differentiation and Correction of the Principle of Presumption of Innocence

The principle of presumption of innocence is interpreted in this article. Its general significance is that the accused should be enacted as an innocent before sentence. In this sense it is just a temporary protective substantial enactment without any issue of refutation. The principple firstly advocated by Beccaria is not the principle of presumption of innocence, but the denial of the presumption of guilt. The principle of presumption of innocence is not generally enacted as the norm of the burden of proof. The principle against compulsory self-incrimination is partly derived from it. The significance of the 12th provision of china procedure law is neither the presumption of innocence, nor forbidding the presumption of guilt, but forbidding the affirmative judge before sentence about the crime of the accused,which is unreasonable and ineffective. The principle of presumption of innocence is not an absolutely necessary designation in legal technique under the principle of rule of law.