关于法院不应当承担证明责任的思考

在刑事诉讼中,由检察院承担证明责任,法院不承担证明责任,是控审职能分离、强化公诉职能的必然要求。但是,我国目前仍然有观点认为法院是证明责任主体,法院应当承担证明责任。针对这种观点,笔者认为,法院的查明和判定行为不等于证明责任行为,更不同于证明责任。从证明责任的实质分析,证明责任的实质和目的在于解决解决案件事实真伪不明时,法官如何下判的问题。法官不仅不具有产生证明责任的前提条件,同时也不可能承担提供证据不足,证明不力的败诉风险。无论是从诉讼证明的性质和诉讼程序正当性的要求看,法官都不应当承担证明责任。

No Legal Burden of Proof on Judge

In criminal procedure ,the general principle is that the burden is on the prosecution to prove the facts essential to their case. The judge has no legal burden of proof. This depends on the difference function between the judge and the prosecution. But someone mistake the judge for subject of legal burden of proof. To this opinion, I think, the judge has the right to investigate the case, has the right to judge the case, but the right is not the legal burden of proof. By analyzing the legal burden of proof, we find that the burden of proof is the obligation on a party to establish the facts in issue in a case to the required degree of certainty (the standard of proof) in order to prove their case. Its aim is to resolve the problem that when the case is not proved, who will fail in the lawsuit .In this circumstances, it matters how the judge to judge the case. The judge has no asserts, so he has no responsibility of putting forward evidence, he will never take any risk of legal proof. However, in any circumstances the judge should have no legal burden of proof.