【摘要】 作为证明责任的特殊配置方式,推定有罪不仅影响到刑事证明活动,还会改变刑事诉讼主体的法律地位及相互关系,并与无罪推定、不自证己罪等原则有潜在冲突,必须受到合理规制。我国刑法和司法解释中虽然规定了推定有罪的个别条款,但程序法中对其适用规则却付之阙如,再加之对推定有罪存在根基的忽略和法律效果的误读,导致了实践中推定有罪的泛化与滥用。厘清推定有罪的适用条件,明确推定有罪的适用对象和效力,才能真正防范和消除推定有罪面临的人权风险和制度阻力。更多还原

【Abstract】 As a special method of assigning the burden of proof,the presumption against the defendant affects the whole criminal procedural structure as well as the evidence system and to some extent is in potential conflict with the principles like the presumption of innocence and avoiding self-incrimination.So it should be applied under reasonable restrictions.Although our criminal code and judicial interpretations stipulate the application of such kind of presumption in a few related terms,no special provisions are made in the criminal procedural law and little research has been conducted in terms of its theoretical basis and legal consequences.This results in the misuse and even abuse of the presumption against the defendant.Therefore,it is necessary to fully analyze the theoretical basis of the principle of presumption against the defendant and define its application conditions,scope and legal effects.Only by so doing can we avoid the potential risk of infringing human rights and the institutional barriers to its application.更多还原