正當防衛案件證明責任的分配邏輯

我國正當防衛案件的證明責任分配規則長期缺位元，不僅在理論上難以形成基本共識，在實踐中也容易引發“同案不同判”，嚴重限制了正當防衛的司法適用。回歸證明責任分配理論的內在機理，可發現證明風險分擔與實體規範要件存在深層互動。要件屬性決定控方客觀證明責任的履行範圍，而主觀證明責任之設置須兼顧一國刑事訴訟構造下的制度需求。破解我國正當防衛案件證明責任之難題，應明確被告人具有客觀形勢下的舉證必要而非證明責任，並在此基礎上啟動司法機關職權調查對事實認定與權利保障的主導作用。

The absence of rules on the allocation of the burden of proof in cases of justifiable defense in China has not only made it difficult to form a basic consensus in theory, but has also easily led to 'dif-ferent verdicts for the same case' in practice, which has seriously restricted the judicial application of jus-tifiable defense. Reviewing the internal mechanism of the theory of the allocation of the burden of proof reveals a deep interaction between the sharing of the risk of proof and the substantive normative ele-ments. The attribute of element determines the scope of objective burden of proof, and the establishment of subjective burden of proof must take account of the system demand of a country's criminal litigation structure. To solve the problem of the burden of proof in cases of justifiable defense in our country, it should be made clear that the defendants have the necessity to provide evidence rather than the burden of proof under the objective situation, and on that basis the leading role of function investigation of judicial organs in fact-finding and rights-protection shall be activated.