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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。
As a special configuration of burden of proof, presumption of guilt not only affects the criminal certification activities, but also changes the legal status and interrelationships of the subject of criminal proceedings and has potential conflicts with the principles of presumption of innocence and self-inculpation, and must be reasonable Regulation. Although individual provisions of presumption of guilt are stipulated in criminal law and judicial interpretation in our country, the failure to apply the applicable rules in the procedural law, together with the ignorance of the existence of presumption of guilt and the misunderstanding of legal effects, lead to the presumption of guilt in practice The generalization and abuse. To clarify the applicable conditions of the presumption of guilt and to clearly presume the applicable object and effect of the guilty will it be possible to truly prevent and eliminate the human rights risks and institutional obstacles to the presumption of guilt.