Abstract
Before dawn on 2nd June 2009, there was a road traffic accident at an intersection in the Chaoyang District of Beijing—a Mercedes Benz car traveling straight ahead hit a taxi turning left which caused the taxi to hit an electricity pylon by the roadside, writing the vehicle off and causing injuries to the two passengers. Zhou, the driver of the Mercedes, left the scene after reporting the crash to the police by telephone. When police from the Chaoyang road traffic division arrived on the scene, an investigation of the scene was conducted, and a (negative) alcohol-level test on the driver of the taxi was performed. Officers repeatedly called the number that Zhou had called from, but the phone was switched off. Later that morning, police searched the address that Zhou’s car was registered to, but did not find Zhou. At around 4 p.m. that afternoon, Zhou turned himself in for questioning at the Chaoyang Traffic Department. The police immediately conducted an alcohol test, but found nothing. The case attracted a lot of public interest, because Zhou was a famous actor. For a time, the “Zhou Hit and Run” case was an internet sensation.
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- 2.
E.g., as per the presumption rule of the “crime of holding a huge amount of property from unidentified sources”, as long as the defendant could not prove the “huge amount of property” is lawfully obtained, such property is presumed to be unlawfully obtained, hence the defendant is presumed guilty. In a certain sense, this is a “presumption of guilty”, i.e., the defendant is presumed guilty as long as he cannot prove his innocence.
- 3.
See He (2016).
- 4.
- 5.
ibid, p. 229.
- 6.
Long (2008).
- 7.
Here we need to differentiate the burden of proof and the right of proof. For example, in criminal lawsuits, the accused generally doesn’t bear the burden of proof but has the right of proof. When exercising this right, the accused also attempts to persuade the adjudicator, but this is not duty so he don’t need to accept unfavorable lawsuit result in case of the failure to persuade the adjudicator.
- 8.
Garner (1999, pp. 1026, 1486).
- 9.
See Waltz (1983, p. 273).
- 10.
It means that the jury doesn’t need to examine the evidence and makes judgments directly under the judge’s instruction. In such case, the judge replaces the judge who plays a role as fact-finder, because the evidence is obviously insufficient so that it doesn’t need to go through the formal jury trial.
- 11.
Xue (2003, p. 179).
- 12.
See Waltz (1983, pp. 393–394).
- 13.
Allen et al. (2006, pp. 801–802).
- 14.
Therefore, in Anglo evidence law, the burden of persuasion is also called the ultimate burden or the general burden. See Qi (2002).
- 15.
Jiang (1999).
- 16.
ibid, pp. 122–123.
- 17.
Long Zongzhi.
- 18.
Bian (2000, p. 375).
- 19.
Xue (2003, p. 1254).
- 20.
Bian, Jianlin (ed.). 2004. The Theory of Criminal Proof, pp. 226–227. China Renmin Public Security University.
- 21.
If it is a private prosecution case, the prosecutor should bear the burden. To make the expression clear, the author only uses the “prosecutor”.
- 22.
Bian, Jianlin (ed.). The Theory of Criminal Proof, p. 227.
- 23.
- 24.
See Waltz (1983, pp. 274–275).
- 25.
See Allen et al. (2006, pp. 801–821).
- 26.
Allen et al. (2006, p. 853).
- 27.
Some scholars in China have prejudice against the standard of “proof beyond a reasonable doubts” in Anglo-American Legal system countries, so we can use the expression of “be sure” with Chinese characteristics. With regard to the information conveyed by the word, “be sure” can be understood as the summary and integration of criminal proof standards in two legal systems, because it contains the concept of “inner conviction” as well as “excluding reasonable doubts”.
- 28.
In fact, Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures has contained such “explanation”. The Article 73 stipulates that: “Where both parties concerned produces contradicting evidences to prove a same fact but neither has enough evidence to rebut the evidences of the other party, the People’s court shall determine which evidences are obviously more forceful than the other evidences by taking the case into consideration, and shall affirm the evidences that are more forceful.”
- 29.
This is the proof standard, which can be applied to some special civil lawsuits it is higher than the standards of “preponderant evidence” in ordinary civil lawsuits, but lower than those of “excluding reasonable doubts” in criminal lawsuits. The original context is Clear and convincing proof or clear and convincing proof”. It means that the evidence shows that there is high possibility for the pending proved facts or reasonable certainty. See Garner (1999, p. 577).
References
Allen, Ronald J., et al. 2006. Evidence: Text, Problems, and Cases, 3rd ed, 801–802. Translated by Zhang Baosheng et al. Beijing: Higher Education Press.
Bian, Jianlin (ed.). 2000. Evidence Law, 376. Beijing: China University of Political Science and Law Press.
Chen, Yiyun (ed.). 2000. Study of Evidence, 2nd ed, 183. Beijing: China Renmin University Press.
Garner, Bryan A. (ed.). 1999. Black’s Law Dictionary, 7th ed. St. Paul: West Group.
He, Jiahong. 2016. Back from the Dead: Wrongful Convictions and Criminal Justice in China, 81–146. Honolulu: University of Hawai’I Press.
He, Jiahong, and Pinxin Liu. 2007. The Evidence Law, 2nd ed. Beijing: Law Press China.
He, Jiahong, and Weiping Zhang (ed.). 2007. The Concise Evidence Law. Beijing: China Renmin University Press.
Huang, Shuo. 2010. Zhou Jie Crash Compensation Case Withdrawal of Charges and Three Party Agreement. Beijing Daily News, published on the ‘Culture China’ website on May 20, 2010 culture.china.com.cn, accessed on January 4, 2017.
Jiang, Wei (ed.). 1999. Law of Evidence, 122. Beijing: Law Press China.
Long, Zongzhi. 2008. Presumption: Limits and their application. Chinese Journal of Law 1.
Qi, Shujie (ed.). 2002. British Law of Evidence, 179. Xiamen: Xiamen University Press.
Waltz, Jones. 1983. Criminal Evidence, 2nd ed. Chicago: Nelson-Hall Press.
Xue, Bo (ed.). 2003. English-Chinese Dictionary of Anglo-American Law, 179. Beijing: Law Press China.
Zhang, Weiping. 2012. Legal Techniques in the Identification and Handling of Facts in the Zhou Jie Crash. Caijing Blog, published on July 9, 2012, accessed on January 4, 2017. http://blog.caijing.com.cn/topic_article-151627-38309.shtml.
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He, J. (2018). The Application of Presumption Rules. In: Methodology of Judicial Proof and Presumption. Masterpieces of Contemporary Jurisprudents in China. Springer, Singapore. https://doi.org/10.1007/978-981-10-8025-8_11
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