THE RULES OF PRESUMPTION IN CHINESE LAWS
He Jiahong
TABLE OF CONTENTS
I. INTRODUCTION
II. THE CONCEPT OF PRESUMPTION IN ENGLISH AND CHINESE
A. The Concept of Presumption in English
B. The Concept of Presumption in Chinese
III. THREE PROGRESSIVE CRITERIA TO DEFINE THE CONCEPT OF PRESUMPTION
A. Presumptions as Determinations of Unknown Facts or Disputed Facts
B. Presumptions as Indirect Fact Finding Based on Inference
C. Presumptions as Legal Rules of Fact Finding
IV. CATEGORIES AND PARADIGMS OF PRESUMPTIONS
A. The Presumption of Right
B. The Presumption of Behavior
C. The Presumption of State
D. The Presumption of Cause
E. The Presumption of Fault
F. The Presumption of Meaning
G. The Presumption of Knowing
H. The Presumption of Purpose
V. CONCLUSION
The concept of presumption has a degree of fuzziness or ambiguity, and the theory of presumption has some confusions. Therefore, it is necessary to define the three progressive criteria for the concept: presumptions are determinations of unknown facts or disputed facts; presumptions are indirect fact finding based on inference; presumptions are legal rules of fact finding. Instead of discussing the intersected and overlapped categories of presumptions, the author illustrates the eight paradigms of presumptions in Chinese laws: the paradigm of state, the paradigm of right, the paradigm of behavior, the paradigm of cause, the paradigm of fault, the paradigm of meaning, the paradigm of knowing and the paradigm of purpose.In last fifteen years, the revelation of many wrongful conviction cases in China has turned the attention of many citizens towards the problem of false confessions extorted by torture. According to a case study of the 50 wrongful convictions for murder, 47 cases (94 percent) had false confessions, and 48 cases (96 percent) had misfeasance of investigators, which included extorting confessions by torture and fabricating evidence.In China, there was no exclusionary rule against illegally obtained evidence in the Criminal Procedure Law (hereinafter referred to as the CPL) of 1979 and 1996, which, instead, only stipulates ‘judges, procurators and investigators must, in accordance with the legally prescribed process, collect various kinds of evidence. It shall be strictly forbidden to extort confessions with torture and to collect evidence by threat, enticement, deceit or other unlawful means’.After some ten years’ preparation, the amendment to the CPL was passed by the National People’s Congress in March 2012, and came into effect on January 1, 2013. One priority of the amendment was to deter and restrain torture and other illegal means to obtain evidence by the exclusionary rules. Article 50 of the amended CPL copied basically the original provision in article 43 of the CPL of 1996, while article 54 of the new law stipulates: ‘Confessions of a criminal suspect or defendant extorted by torture or other illegal means, testimonies of a witness and statements of a victim collected by violence, threat or other illegal methods, shall be excluded.’On February 21, 2017, the Supreme People’s Court (SPC) issued the Implementation Opinions for Overall Promotion of Criminal Procedure System Reform with the Trial-Centeredness, in which the forth part stresses the rules of evidence, including the exclusionary rule against illegal evidence, in order to prevent wrongful convictions. On June 27, the SPC, the Supreme People’s Procuratorate (SPP), the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly promulgated the Provisions on Several Issues concerning the Strictly Exclusion of Illegal Evidence in Criminal Cases.Now Chinese laws explicitly forbid extorting confessions with torture, and have adopted the exclusionary rule against illegally obtained evidence. However, it is often difficult to collect sufficient evidence to prove tortures in judicial proceedings. Even though the procurators investigate the alleged torture, it would still be difficult to get a sufficient proof. The main causes are: firstly, tortures often happen in places that are far from the public, and the only eye-witnesses are police officers; secondly, there is often a long time interval between the occurrence and investigation of torture, which makes it difficult to collect evidence promptly; thirdly, often the only person who is willing to prove the torture is the defendant, and it is difficult for a judge to accept this ‘isolated evidence’ as true and sufficient proof. In order to make the exclusionary rule effective with those difficulties of proof, the SPC made special provisions on the burden of proof regarding the issue of illegal evidence.In summary, as for the factual dispute of whether or not there exists the extorting confession with torture, the defendant shall bear initial burden of proof, i.e., the burden of going forward with some evidence, such as a reasonable statement, wounds, an injury assessment report, and a witness testimony. Then, the public prosecutor shall bear the burden of proof for the legality of the evidence, i.e., that there has been no torture for obtaining the confession. In the proceedings, the standard of proof for defense is lower than that for prosecution. The former is to make the judge believe in that there is a substantial likelihood that the police committed a torture, while the latter is to prove the legality with reliable and sufficient evidence. If the prosecutor cannot provide sufficient evidence to prove that, the prosecution will bear the corresponding consequence, i.e., the confession will be excluded. In this sense, the burden of proof in the dispute of torture is inverted to the prosecution.Now the question is whether this is a presumption. The author would think that it is. Although the law does not use the word presumption or presume, the provision implies that so long as the defense produces some evidence to support the claim of torture, the court would presume the existence of torture. If the prosecution cannot provide sufficient evidence to rebut the presumption, the court will make a ruling for the defense, and exclude the confession. However, some scholars may disagree with the author. In order to answer this controversial question, the concept of presumption shall be clarified first. II. THE CONCEPT OF PRESUMPTION IN ENGLISH AND CHINESEAs a legal term, the concept of presumption (tuiding) in Chinese is introduced from western languages, majorly English, which gives this concept some trace of translation. On the one hand, we learn, through this concept, the theory of presumptions in evidence study of common law countries; on the other hand, we also have introduced the confusion of presumption theories. As the saying goes, the very English that introduces the concept is what confuses the concept.A. The Concept of Presumption in EnglishIn English, even the authoritative professional literature does not provide a uniform definition of presumptions. Based on the sources of these authoritative literatures, the author can, nonetheless, ‘presume’ the validity of these definitions to some extent. In the Oxford Advanced Learner’s English-Chinese Dictionary, a presumption includes the meaning of ‘supposition’, that is, ‘Presumption: suppose something to be true or the case.’ Although Bryan A. Garner is the chief editor of both A Dictionary of Modern Legal Usage and Black’s Law Dictionary, the definitions of presumptions given by the two dictionaries differ from one another. In A Dictionary of Modern Legal Usage, it says ‘Presumption: a judicially applied prediction of factual or legal probability’, and in the Black’s Law Dictionary, ‘Presumption: a legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts’.In addition, law scholars in common law countries give various interpretations of the presumption. For example, Prof. Jon Waltz held that ‘presumption is an inference of the existence or nonexistence of a fact which arises from proof of other basic, underlying facts’. Prof. Ronald Allen believed that ‘the presumption is the term that courts and commentators use to describe and define a set of rules of inferential process of proof, that is, a specific, created legal relation between a proved fact A, which leads to a presumed fact, and the presumed fact B ... There also exist some inferential relations between a presumed fact and the fact that leads to such a presumed fact. For instance, in the case of presumed death, the proved fact A (the whereabouts not heard from for seven years) provides some supporting inferences for the fact B (the death). In some cases, those who can determinate facts rationally could guarantee the fact B based on the fact A even without presumptions’. Prof. John Smith said that ‘presumptions are rules whereby on proof of a certain fact or facts, say A and B, the trier of fact either must, or may, presume the existence a further fact, C’. The most famous American scholar on evidence law, Prof. John Wigmore had a vivid description of the term as that ‘presumptions … may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.’Stripping away the linguistic embellishment of the above definitions, the author can find that the use of keywords include suppose, prediction, inference, assumption, inferential process of proof and so on. Then, what are the similarities and differences between the keywords that define presumptions? In English, suppose refers to ‘accept as true or probable’; prediction, ‘say in advance that something will happen’; inference, ‘reach an opinion from facts or reasoning’; assumption, ‘accept something as true before there is proof’. In addition, when explaining presumptions and the above mentioned words in English people often use another two words, namely, ‘reasoning’ and ‘deduction’. Reasoning refers to ‘act or process of using one’s power to think, understand, form opinions; arguments produced when doing this’ and deduction means ‘reasoning from general principles to a particular case’.After clarifying the meanings of these keywords, the author is back to the definitions of presumption with the following understandings. First of all, the word, presumption, in English has a certain degree of fuzziness or ambiguity and people can use it to express an assumption or supposition, an inference or inferential process of proof, or even a prediction. Secondly, presumptions are related to how people perceive facts; therefore, be it a hypothetical assumption or an inferential prediction, it is aimed to know the facts. Finally, the original meaning of presumptions is the presupposition of facts whereas in the legal context people tend to emphasize that the foundation of such a presupposition is the relation between facts or the probabilities of occurrence. Possibly, under such complex context, Prof. Wigmore came up with the ‘bats of law’ to refer to presumptions. So far, the author has vaguely felt that presumption in English does not seem to have exactly the same meaning as tuiding (presumption) in Chinese. But this is only my perceptual knowledge waiting to be conceptualized after further verification of the concept of tuiding in Chinese.B. The Concept of Presumption in ChineseIn China’s mainland, law scholars began introductory study on presumptions in the late 1980s. In the Study of Evidence published in 1983, a tryout textbook for tertiary law education, the editors did not discuss presumptions in particular but only gave a brief introduction to the basic concepts of ‘presumption of guilt’ and ‘presumption of innocence’, categorizing ‘anyone who recently occupies stolen objects shall be presumed to be the thief’ in Anglo-American law into ‘presumption of guilt’.Study of Evidence, chief-edited by Prof. Chen Yiyun, was one of the earliest textbooks that introduced the theory of presumptions. With its first edition published in 1991, the textbook dedicated a chapter to issues of presumptions. Regarding the concept of presumptions, editors wrote ‘in legal contexts, the term ‘presumption’ refers to assumption and inference … the presumption in law is a term explicitly provided in law, that is, the confirmed existence of a fact guarantees the existence of another presumed fact without proof … Presumptions are ‘presumptions’ defined in law, which means based on certain facts it is presumed that other facts exist in accordance with the law’, this textbook maintained the view in its second edition published in 2000.Other following textbooks in the field of evidence or evidence law generally discuss presumption in particular and give a similar description of its concept. For instance, Prof. Jiang Wei believes that ‘the so-called presumption is a principle of evidence that the existence of an unknown fact is inferred from a known fact, and parties are allowed to rebut the existence of the unknown fact by providing evidence in accordance with provisions of law or practice in courts’. Prof. Fan Chongyi considers that ‘presumption means inferences of existence of certain facts in accordance with the law, and such inferences are established based on other foundations or facts’. Prof. Bian Jianlin argues ‘presumption refers to a principle of evidence that in accordance with provisions of law or practice in courts, the existence of an unknown fact is inferred from a known, basic fact, and parties are allowed to rebut the existence of an unknown fact by providing contrary evidence’. Although we can see vaguely the influence of the concept of ‘presumption’ in English and differences between the above statements, these statements basically maintain the meaning of tuiding in Chinese, that is, inference and determination.However, the definition of concept is abstract and minimalistic. Though the definitions of presumption are similar in Chinese scholars’ works, some notable differences and inconsistencies occur when it comes to specific usages of the term. For example, Prof. Chen Yiyun thinks tuiding (presumption) and nizhi (legal fiction) are two different concepts, and shall not be confused; such phrases as regarded as and seen as belonging to the scope of nizhi rather than tuiding. Prof. Bian Jianlin also holds that view. However, Prof. Jiang Wei believes that there is a connection between nizhi and tuiding. The phrase of regarded as and other terms are often used in ‘inferential fictions’ in order to determine the declaration of will of parties in accordance with law. Prof. Fan Chongyi largely agrees with Prof. Jiang. In addition, some scholars bring paradoxical concepts when introducing presumption. For example, some scholars define that presumption refers to ‘inferring unknown facts based upon the basic, known ones’ and ‘involving two kinds of facts’. They also define that presumption includes direct presumption, which means assumptions of existence of a fact without any factual premise, that is, without depending on any basic facts, such as ‘presumption of innocence’. If presumptions consist of basic facts and presumed facts, how can a direct presumption be called presumption without the basic fact? In order to get rid of the embarrassment of this paradox, some scholars have to say ‘direct presumption is not a real presumption’.The above discussion just shows differences between presumption in English and tuiding in Chinese. We have become accustomed to translate presumption in English into tuiding in Chinese for years, and have consciously or unconsciously believed that the two words are equivalent to each other. Through careful comparison, we can see that presumption and tuiding are not completely identical. In English, the basic meaning of presumption is pre-assumption, whereas in Chinese, the basic meaning of tuiding is inference and determination. Therefore, the usage of presumption in English is appropriate whereas it is not very precise to transplant it into tuiding in Chinese. For example, the presumption of innocence is a logical, precise expression in English, for it refers to ‘presumed innocent until proved guilty’; however, the translated Chinese counterpart is not that appropriate, because we cannot say that ‘the defendant is innocent with the inference and determination’. This is a problem. While we vaguely accept the concept of presumption in English, we cannot help using tuiding in Chinese to explain the meaning of presumption in English. Therefore, using ‘inference and determination’ to explain ‘pre-assumption’ inevitably brings linguistic confusions. It seems that Chinese ‘bats’ are not identical with English ‘bats’.Some American scholars also believe that presumption of innocence is different from evidentiary presumptions. The presumption of innocence is not what lawyers call an ‘evidentiary presumption’. It does not arise from factual inferences, statistically supported, that accused persons are in fact more likely to be innocent than guilty. Thus, we can translate the presumption of innocence into a better correspondence, ‘wuzui jiading (assumption of innocence)’. However, language is established by usage and the author does not intend to change the established use of the term ‘wuzui tuiding’ in Chinese. However, we must note the semantic differences between presumption and tuiding. When translating ‘presumption of innocence’ into ‘wuzui tuiding’, we should know that we just borrow its linguistic form of tuiding. It is certain that presumption of innocence is an important principle in criminal justice and criminal proceedings; however, presumption of innocence does not matter much in or belong to the issue of presumptions in the field of evidence law and judicial proof. In summary, the concept of presumption is confusing in the evidence law, and the term may be misleading in theoretical studies as well as in judicial practices and legislative and judicial interpretations.In order to define the concept in Chinese, the author should clarify the relationship between tuiding (presumption) and the synonyms. In Chinese, the synonyms of tuiding include tuili (inferring), tuiduan (inferring and ascertaining), tuilun (reasoning), etc. Although these concepts are within the scope of the logical thinking category, that is, deducing unknown facts from known ones, they have different semantic foci. In judicial proof, the focus of tuili is the thinking process of finding the facts; tuiduan is the thinking result of finding the facts; tuilun is the linguistic argumentation of the thinking process of finding the facts; tuiding is the inference method of finding the facts. During the thinking process, tuili is the foundation of the other concepts whereas tuiduan, tuilun, and tuiding are results or manifestations of tuili.Tuili, or inference, means that new recognition of facts is deducted from the known facts according to the rules of logic and practice. Inference is one common thinking method of investigating and proving cases in judicial activities, and also the significant magnification of mankind thinking power and intelligence. For example, a man was murdered. Investigators found that the man’s wife committed adultery and therefore made the following inference: The major premise is that the adulterate wife and her adulterer often conspire to murder the husband; the minor premise is that this wife committed adultery; the conclusion is that she and the adulterer probably conspired and killed her husband.Undoubtedly, the major premise belongs to the judgment of probable truth and so does the reasoning conclusion. However, based on such reasoning, investigators eventually identified the facts of the case and captured the criminals. Nonetheless, the court cannot make a judgment based solely on the reasoning, for other evidences are also needed.In some contexts, the meanings of tuiduan and tuili are basically the same, which mean mental activity that infers unknown facts from known ones. Strictly speaking, however, there are still differences between the two words in semantic focus: the semantic focus of tuiduan is the process of thinking and activities; that of tuiduan is the conclusions or results of such thinking activity. In this sense, we can say that tuiduan is the judgment made on the basis of tuili. In the above case, investigators could make a judgment based on the above inference: the wife and the adulterer conspired and murdered the husband. As for the meaning of tuilun, we can explain it as argumentation based on the inference. If the investigators need to convince judicial officials to issue an arrest warrant for the wife and the adulterer, they have to use logical argumentation or to explain the inferring process. Thus, tuiduan and tuilun are both based on tuili. As for the thinking process, we must begin with tui (thinking process), and then we have duan (judgment) and lun (argumentation); there exist no duan and lun without tui. Tui is the precondition and duan and lun are the result and continuation. From the perspective of content and formality, tuili is the flesh and blood of tuiduan and tuilun; tuiduan and tuilun are manifestations of tuili.Regarding semantic meanings, tuiding refers to judgments or determinations that are made on the basis of tuili. Here, the morpheme li refers to the accompanying relationship or the normal linkage between two facts. Thus, the existence of one fact tells the existence of another fact. In other words, due to the accompanying relationship between the fact A and B, the existence of B could be determined with the existence of A. For example, in the case of presumed death, the reasoning of the presumption is as follows: The major premise is that a person that has disappeared for seven years has generally died; the minor premise is that this person has disappeared for seven years; the conclusion is that this person is dead.Indeed, in this presumption the major premise is a judgment of probable truth; thus, the presumed fact may not be an objective fact. Yet, the whole presumption is reasonable, because the inferring it depends on is well established. Here we need to note that not every line of inferring can be transferred into a presumption although the inference is the basis of presumption. This is the question the author will discuss below.
III. THREE PROGRESSIVE CRITERIA TO DEFINE THE CONCEPT OF PRESUMPTION
When using the concept of presumptions, judges may have deviations of the denotation of presumptions due to a hazy understanding of its connotation. There are two occasions when the denotation of presumptions is wrongly expanded. On the one hand, the concept is expanded to all reasoning activities that judges take when determining facts in particular cases, which is the case when the reasoning that ‘the wife and the adulterer conspired and murdered the husband’ is treated as a presumption. On the other hand, the concept is expanded to all the legal provisions that involve probability or suppositional element, for example, one may confuse the ‘presumption of innocence’ with presumptions in judicial proof. The above two expansions involve other meanings that do not belong to the concept of presumption, which inevitably leads to confusion. Therefore, to step out of this confusion, it is necessary to define the criteria of the concept, which are three progressive criteria.A. Presumptions as Determinations of Unknown Facts or Disputed FactsPresumptions belong to the scope of judicial fact-finding, whose basic function is to provide judicial personnel with a convenient way to determine unknown facts or disputed facts. Although judicial personnel make presumptions according to the law, it does not necessarily mean that presumptions are meant to solve legal issues in specific cases. Since provisions on presumptions tell judicial officers how to determine unknown facts or disputed facts, a provision does not belong to the scope of presumptions if it does not involve fact-finding but deals only objects stipulated or how it stipulates objects. And this is the basic criterion to distinguish presumptions and legal fictions.What we call a legal fiction is that law equals one fact as another different fact and gives them the same legal effect in particular cases. Paragraph 2 of article 67 in the Criminal Law provides, ‘if a criminal suspect or a defendant under compulsory measures or a criminal serving a sentence truthfully confesses his other crimes that the judicial organ does not know, his act shall be regarded as voluntary surrender’. In order to encourage truthful confession, this article equals the action of giving a true confession as voluntary surrender. In paragraph 3 of article 14 in the Labor Contract Law of the PRC, it is provided that ‘in case any employer fails to sign a labor contract in written form with a worker after the extension of one full year as of the date of start to use him, it shall be regarded that the employer and the worker has concluded a labor contract without a fixed period’. This article equals failing to sign a labor contract in written form as signing a labor contract without a fixed period, thereby protecting the rights of laborers.Both fictions and presumptions are used to describe the relation between two facts (A and B), yet with distinctions. The meaning of a fiction is that the law regards A as B, knowing A is not B whereas in a presumption, B with its existence unknown is presumed on the basis of A. In other words, in the case of a fiction, A and B are concrete facts that need no further identification; however, as for a presumption, since A is clear while B is not and in want of verification, the determination of B is established on A. Although ‘regard … as’ might be used in either provision, the two concepts can be distinguished according to the contexts they are used. For example, article 15 of the General Provisions of Civil Law (GPCL) stipulates that ‘if a citizen’s habitual residence is not the same as his domicile, his habitual residence shall be regarded as his domicile’. This is a legal fiction, for the habitual residence is not the domicile of a citizen but is regarded as the same in law. In addition, article 66 of the GPCL stipulates that ‘if a principal is aware that a civil act is being executed in his name but fails to repudiate it, his consent shall be deemed to have been given’, which belongs to provisions of presumptions. Firstly, the fact A ‘a principal is aware that a civil act is being executed in his name but fails to repudiate it’ is clearly verified; however, the fact B is not verified, that is, the person may or may not consent to the act. Secondly, on the basis of empirical rules, being ‘aware something but fails to repudiate it’ is usually accompanied with consent. Thus, the action is presumed as under consent.In addition, the author does not agree with the notion of ‘inferential fiction’. According to explanations of some scholars, the so-called ‘inferential fiction’ refers to that ‘when the party does not make a declaration of will or when the declaration of will is ambiguous, it is regarded that the party makes such a declaration of will or that the ambiguous declaration of will has a specific meaning according to what is provided in law.’ Scholars who hold that view also admit the ‘notable difference between’ the inferential fiction and other fictions and that ‘the inferential fiction is actually a kind of legal presumption’. The author thinks that this kind of provisions belong to the category of presumption but not fiction, as is stipulated in article 66 of the GPCL.B. Presumptions as Indirect Fact Finding Based on InferenceAs for cognitive activities, judicial personnel can adopt both direct and indirect determination approaches to unknown or disputed facts. Presumptions belong to the indirect approach to find unknown facts; therefore the direct finding of unknown facts does not belong to the scope of presumptions. For instance, the ‘presumption of death’ means that the court indirectly determine a person’s death based on the person’s disappearance of years; however, if the court directly determine a person’s death with the person’s body or the death certificate issued by the appropriate authority, the fact finding process does not belong to the scope of presumptions. In addition, the indirect fact finding relies on reasoning as the bridge connecting the facts, that is, the existence of some facts is derived based on certain existing facts according to rules of relations between object things. In this case, the known fact is called the ‘basic fact’ or ‘given fact’; the other is called the ‘presumed fact’ or ‘resulted fact’; the inference process bridges and connects the two facts cognitively.The foundation of presumptions generally manifests as the accompanying relationship or normal linkage between the basic fact and the presumed fact. This relationship or linkage does not necessarily exist; therefore, the existence of basic fact does not guarantee the existence of presumed fact, that is, the existence of basic fact may lead to presumed fact with a certain degree of probability. However, as for a criterion for establishing presumptions, a high degree of probability is required for such relationship or linkage, which means that the basic fact may lead to the presumed fact with a high degree of probability. It is also a major criterion to determine whether a piece of reasoning can be transformed into a presumption. In other words, it is the main criterion to evaluate the reasonableness of an established presumption.For instance, as aforementioned, the reasoning that ‘the wife and the adulterer conspired and murdered the husband’ cannot be transformed into a presumption, because the fact ‘the wife having adulterer’ does not have an accompanying relationship of a high probability with ‘the murder of the husband’. Nonetheless, there exists some degree of probability between the fact and the reasoning. In reality, adulterous wife might murdered her husband, for example, the wife Pan Jinlian and the adulterer Ximen Qing together murdered the husband Wu Dalang. Yet, life experience also tells us that many other adultery wives will not murder the husband. There is nothing wrong with using the reasoning approach to determine the investigation direction in a criminal case, for the aim is to determine suspects and collect evidence. However, if a judge uses this reasoning as the basis for presumptions, determining that ‘any murdered husband is presumed to be killed by his unfaithful wife’, it is prone to create the miscarriage of justice as in the famous case of Yang Naiwu and Bok Choy in Chinese history.When defining presumptions, some scholars use such expression as the ‘existence or non-existence’ of the presumed fact. An inadvertent expression as it seems, it brings a question worthy of discussion: whether presumptions of alleged facts include negative conclusions. In other words, whether an inference of non-existence of a fact made based on some fact can be included in the scope of presumptions. On this issue, Prof. Chen Jierong makes an unusual illustration that is equally inadvertent: ‘If the alibi of defendant has been checked out in a tort case, it can be regarded as the basic fact and leads to a presumption, i.e., a fact to be proved, that the defendant is not the tortfeasor.’ It is a presumption when the defendant is regarded as the tortfeasor based on the basic facts; however, is it a presumption when the defendant is not regarded as the tortfeasor based on the basic facts? In criminal proceedings, the alibi is also a frequently-used means by the defense to prove the innocence of the defendant. Does such a confirmation also belong to the scope of presumptions? In the trial of civil or criminal cases the judge can make a decision based on the proven facts of the defendant’s alibi that the defendant is not the tortfeasor or the perpetrator, and this kind of judgments also belongs to the indirect fact finding based on the inference, which is as follows: The major premise is that the person who is not at the scene of the infringement is not the tortfeasor; the minor premise is that the defendant is not at the scene of the infringement; the conclusion is that the defendant is not the tortfeasor.The inference could be established; however, the above ‘presumption’ raises a question. The presumptions we often talk about are the inferences that the existence of a fact deduced from another fact, rather than the non-existence of a fact. Do the inferences with the negative conclusions belong to the scope of presumptions? The author’s answer is no. As is known to all, the main function of presumptions is to reduce unnecessary proof processes and to avoid proof processes that are difficult to complete. It directly results in the exemption or reallocation of the burden of proof. Firstly, the inclusion of the negative concluded inferences into presumptions does not help reduce unnecessary proof processes; secondly, the example inference is clear and simple, and not difficult to accomplish: it is not necessary to regard such an inference that ‘the person who was not at the scene of act did not commit the act’ as a presumption; and finally, such an inference does not influence the exemption or reallocation of the burden of proof, because in such cases, the defendant does not bear the burden of proof. Now the discussion goes into the third criterion of defining the concept of presumption.C. Presumptions as Legal Rules of Fact FindingOne important difference between the presumption and reasoning, inference, argumentation and other concepts is that the concept of presumption generates from legal provisions. It is worth noting the difference, for it answers the so-called problem of ‘the source of conceptual chaos of presumptions’: whether the inference of unknown facts made by the judge under empirical rules rather than legal provisions belongs to the scope of presumptions.On this issue, scholars have different views although differences might be blurred due to wording and phrasing. For example, in the textbooks edited by Prof. Jiang Wei and by Prof. Bian Jianlin, the question is not directly answered but it mentions that the inferences ‘made by the court according to empirical rules’ are included in the concept of presumption. In the textbook edited by Prof. Chen Yiyun, although presumptions as legal provisions are not explicitly mentioned, the related discussion apparently excludes those inferences and clearly defines that ‘presumptions are the presumptions of law’. In the textbook edited by Prof. Fan Chongyi, it says, on the one hand, ‘the so-called presumptions refer to the inferences that the existence of facts is made in accordance with law’; on the other, ‘presumptions can be made in accordance with law or empirical rules’ and the inferences ‘that are adopted frequently in judicial practices though not stipulated by law’ are also presumptions.It is necessary to define presumptions within the scope of law. On the one hand, it can effectively avoid the usage confusion of the concept of presumptions, especially compared with concepts of inference and other words. As legal term, presumptions should be distinguished from inferences: inferences are the way of thinking of judicial personnel when determining facts; presumptions are inferences established in legal form. Some inferences can become presumptions while some others cannot. On the other hand, it also helps improve the rationality and normality of the establishment and use of presumptions. Without a clear line between presumptions and inferences, questions of presumptions will tangle and mingle with those of inferences, which undermine further studies of presumptions. We need to exclude the inferences made by judicial personnel in specific cases before having a clearer look of the connotation and denotation of presumptions. It helps people to better focus on the rules of presumptions and the conditions when an inference can become a presumption, thereby contributing a more reasonable and standardized establishment and use of presumptions.After clearly defining presumptions as legal rules, we enter into a more meaningful discussion: what kind of inferences can transform into presumptions. From a historical perspective, although we cannot accurately trace the formation of each of presumptions, we find that presumptions are generally growing out of the inferences made by judicial officers in individual cases, and then becoming a case law and even a statutory law. Taking ‘the presumption of holding recently stolen property’ as an example, initially, a judge made the inference that someone who held recently stolen property and could not give a reasonable explanation was the thief. Then the case was acknowledged and cited by other judges, this inference became a rule that judicial personnel generally adopted. Therefore, it is a growing general pattern of formation that presumptions develop from individual experience of judges to a universal rule.Then, why should individual experience of judges be elevated into a universal rule? It is mainly aimed to regulate the use of inferences by judiciary personnel when they determine unknown facts. In judicial activities, judges often face some difficult facts to prove. For example, a person who has disappeared for years and the spouse intends to remarry or the family intends to inherit the property, requiring the judge to announce the person’s death. However, there is no evidence to prove that person’s death. Faced with the problem, some judges would make a death declaration, while some others would not. In addition, judges would disagree on the missing period before the death declaration: some judges would insist on the missing period of ten years while others would consider five years, thus the different judicial decisions would be made in the similar cases. In order to unify judicial decisions, the law provides that a person who has disappeared for seven years is presumed dead.In summary, presumptions are inferential findings of fact made by judicial personnel in accordance with the legal rules. Through establishing the rules of presumptions, the law regulates the judges’ behaviors of making inferences so as to ensure the correctness of judicial decisions, and to guarantee the fairness in judicial activities, including both the substantive justice and the procedural justice. Clarification of the concept contributes to the making, examining and using of the rules related with presumptions. IV. CATEGORIES AND PARADIGMS OF PRESUMPTIONSIn the evidence law of Anglo-American legal systems, presumption poses a constant headache to scholars, for it is a mess when using not only the concept but also its subordinate categories. For instance, the Black’s Law Dictionary enumerates many subordinate categories of presumption, such as presumption of fact or factual presumption and presumption of law or legal presumption; rebuttable presumption and irrebuttable presumption; mandatory presumption and permissive presumption; absolute presumption and conditional presumption; conclusive presumption and procedural presumption; disputable presumption and prima facie presumption; conflicting presumption and inconsistent presumption; presumption of general application and statutory presumption; Thayer presumption and Morgan presumption, etc. With so many categories and their semantics intersected and overlapped, no wonder learners or researchers feel dazzled upon the entry into this field. Prof. Edmund Morgan said in 1937, ‘Every writer with sufficient intelligence to appreciate difficulties of the subject matter has approached the topic of presumption with a sense of hopelessness and has left it with a feeling of despair’.These categories are created by British and American scholars during their research for better explaining connotation and extension of presumption concept. Many scholars would like to create categories: on the one hand, finding that the original categories were not reasonable or accurate, they proposed new ones; on the other hand, a newly created category can become a symbolic achievement for their creative mind. Scholars who prefer to do something different are never bored with racking their brains, so new categories came into being one after another despite that many of them are only repetitions of old ones. Undoubtedly, many fields in legal study exist such kind of knowledge increment more in name than in reality, but the complicated concept of presumption provides sufficient space for creative mind of scholars.Some scholars in common law countries adopted a practical evasive attitude toward such chaos of presumption categories. They would not bother to classify presumptions, but to study directly particular presumption categories or paradigms. The Australian experts of evidence law, Waight and Williams, wrote: ‘The accuracy of presumption and its classification are so indistinct … Therefore, we will not intend in the present book to examine those suggestive varieties of presumption, such as rebuttable presumption and irrebuttable presumption, presumption of law and presumption of fact’. Instead, they introduce some ‘particular presumptions’, which are widely applied in Australian judiciary practice in the book. The first is the presumption of legitimacy; the second is the presumption of the validity of marriage; the third is the presumption of life of continuance; the fourth is the presumption of death; the fifth is the presumption of survivorship; the sixth is the presumption of regularity; the seventh is the presumption of accuracy of scientific instruments.In the viewpoint of the author, we should not indulge in the chaos of presumption categories or classifications, but to study the particular presumption rules, and try to establish some paradigms of presumption. There are numerous and complicated presumption rules in Chinese laws, including the judicial interpretations. Those rules are scattered in different fields of law, such as the Criminal Law, the Contract Law, the Succession Law, the Environmental Protection Law, the Copyright Law, and the Patent Law, etc. Those rules can be put into some paradigms according to the themes of the presumption, or the subject matters of the proof, such as the state of matter, the characters of behavior, the subjective fault, and whether knowing or not, etc. The following paradigms are based on a research about the presumption rules in China’s current laws and judicial interpretations.A. The Presumption of RightThe presumption of right is made, when some ownership is not clear, to the given right in accordance with certain basic fact. For example, article 250 of the Contract Law prescribes: ‘The lessor and the lessee may agree on the ownership of the lease item at the end of the lease term. Where the ownership of the lease item was not prescribed or clearly prescribed, and cannot be determined in accordance with article 61 hereof, title to the lease item shall vest in the lessor’. This is the legislative presumption on the ownership of lease item. Article 11 of the Copyright Law reads: ‘The citizen, legal person or entity without legal personality whose name is indicated on a work shall, in the absence of proof to the contrary, be deemed to be the author of the work’. This is the legislative presumption on copyright ownership. Article 88 of the Opinions of SPC on Several Issues concerning the Implementation of the GPCL prescibes: ‘For a joint property, where some co-owners adovate ownership by shares and other co-owners adovate common ownership, if the property cannot be proved to owned by shares, it shall be deemed to be common ownership’. This is the judicial presumption on the ownership of common property. B. The Presumption of BehaviorThe presumption of behavior is made, under the condition whether some behavior exists and when objective, quality or character of some behavior are not clear, to the given behavior in accordance with a certain basic fact. For example, article 25 of the Law of Succession prescribes: ‘A successor who, after the opening of succession, disclaims inheritance should make known his decision before the disposition of the estate. In the absence of such an indication, he is deemed to have accepted the inheritance. A legatee should, within two months from the time he learns of the legacy, make known whether he accepts it or disclaims it. In the absence of such an indication within the specified period, he is deemed to have disclaimed the legacy.’ This is the legislative presumption on acceptance of inheritance and disclaim of legacy. Article 22 of the Interpretation of SPC on Several Issues in the Application of the Marriage Law prescribes: ‘before the marriage of the parties in question, where parents of either party invested in housing for the couple, the investment shall be deemed to personal gift to offspring of their own, except that the said parents explicitly express their gift to the couple. After the marriage, any investment by parents of either party in housing for the couple shall be deemed to the couple, except that the said parents explicitly express their gift to one party of the couple.’ This is the judicial presumption on gift. Article 119 of the Interpretations of SPC on Several Issues in the Application of the Security Law prescribes: ‘actually paid deposit is more or less than the prescribed amount, it is deemed to deposit alteration contract’. This is the judicial presumption on contract alteration. C. The Presumption of StateThe presumption of state is made, when content, quality, character or status of cognitive objectives such as people, matter and thing are not clear, to the given situation in accordance with certain basic fact. For example, article 23 of the GPCL prescribes: ‘Under either of the following circumstances, an interested person may apply to the people’s court for a declaration of a citizen’s death: (i) if the citizen’s whereabouts have been unknown for four years or (ii) if the citizen’s whereabouts have been unknown for two years after the date of an accident in which he was involved. If a person’s whereabouts become unknown during a war, the calculation of the time period in which his whereabouts are unknown shall begin on the final day of the war.’ This is a presumption about life state. Article 395 of the Criminal Law reads as follows: ‘Any State official whose property or expenditure obviously exceeds his lawful income, if the difference is enormous, may be ordered to explain the source of his property. If he cannot prove that the sources are legitimate, the part that exceeds his lawful income shall be regarded as illegal gains’. This is a presumption about property character. Some scholars attribute ‘enormous property of unknown source’ to ‘possessing crime’, holding that the provision of article 395 of the Criminal Law is of ‘knowing’ presumption. In my opinion, the presumption item hereby is of property, i.e., illegal gains, not whether knowing or not by the accused. Article 2 of the Opinions of SPC on Several Issues concerning the Implementation of the Law of Succession prescibes: ‘Persons who are in succession relationship each other were dead in the same accident, if the dying time cannot be determined in order of priority, it shall be presumed that the person without successor was dead first. Where the dead had their own successor, if they belong to different generations, the person of senior generation is presumed to be dead first; if they are at the same generation, they are presumed to be dead at the same time and no succession will be open among them, their successors will take legacy respectively’. This is the judicial presumption of time sequence on life state or life in dying state. Article 75 of the Provisions on Several Issues concerning Evidence in Civil Procedure (PECP) reads as follows: ‘Where there is evidence proving that a concerned party refuses, without any justifiable reason, to provide evidence that he controls, and the opposite party alleges that contents of such evidence are disadvantageous to the evidence holder, such allegation can be construed as justifiable’. This is the judicial presumption on evidence content.D. The Presumption of CauseThe presumption of cause is made, when the cause of some effect is not clear, to determine that some fact is the cause in accordance with causality. Because this presumption is based on causal relationship between two facts, it is also termed presumption of causality. For example, item 3 of article 4 in the PECP reads: ‘In a compensation lawsuit for damages caused by environmental pollution, the infringing party shall be responsible for producing evidence to prove the existence of exemptions of liabilities as provided in laws or that there is no causal relationship between his act and the harmful consequences’. Although this article does not apply ‘presumption’ or ‘be deemed to’ thereof, the provision of responsibility for producing evidence implies judicial presumption on damages caused by environmental pollution, i.e., as long as some evidence proves the fact of environmental pollution and related damage, presumption can be made that the latter is caused by the former, or the two exist causal relationship, thus the infringing party shall be responsible for producing evidence of ‘no causal relationship’. In addition, item 7 of article 4 of the PECP prescribes: ‘In an infringement action of damages caused by common danger, the persons who commit the common danger shall be responsible for producing evidences to prove that there is no causal relationship between the act thereof and the harmful consequences.’ Item 8 of article 4 in the PECP reads: ‘In an infringement action of damages caused by medical acts, the medical institution shall be responsible for producing evidences to prove that there is no causal relationship between the medical act and the harmful consequences or it is not at fault.’ These are all judicial presumptions on causes of civil infringement damages. Article 18 of Several Provisions of SPC on the Trial of Cases on Civil Compensation for False Statement in Securities Market prescribes: ‘In any of the following circumstances, the people’s court shall deem that causal relationship exist between false statement and damage result: (i) securities that investor purchased are directly related to false statement; (ii) investor bought these securities on or after the date of the false statement until disclosed date or before corrected date; (iii) on the date or after the corrected date of false statement disclosed, investor suffered loss because of selling these securities or holding continuously these securities.’ This is the judicial presumption on causal relationship between false statement by listing company and investor’s damages. In other words, as long as the prescribed elemental truth mentioned above exists, it shall presume that the false statement by listing company is the fact that caused investor’s damages. E. The Presumption of FaultThe presumption of fault is made, under the condition that it is not clear whether the tortfeasor has subjective fault or not, to identify that he or she has subjective fault based on some basic truth. For instance, article 126 of the GPCL prescribes: ‘If a building or any other installation or an object placed or hung on a structure collapses, detaches or drops down and causes damages to others, its owner or manager shall bear civil liability, unless he can prove himself not at fault’. This is the legislative presumption on subjective fault leading to above-mentioned damages by building owner or manager. Article 16 of the Interpretations of SPC on Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury stipulates: ‘Under any of the following circumstances, article 126 of the GPCL shall apply, and the owner or caretaker shall bear the compensation liabilities, unless he can prove that he has no fault: (i) a road, bridge, tunnel or any other artificial building injures someone due to a blemish in maintenance or management; (ii) a piled-up article rolls or slides down or collapses, and injures someone; (iii) a tree falls down or is broken or a fruit drops, and injures someone. Where, in the event of a circumstance in sub-paragraph 1 of the preceding paragraph, an injury occurs due to a defect in design or construction, the owner and the caretaker shall bear joint liabilities together with the designer or constructor. This is the judicial presumption supplementing and detailing the legislative presumption. F. The Presumption of MeaningUnder the condition that the actor’s expression of meaning is not clear, this presumption is made to identify his expression of meaning based on certain basic facts. For instance, article 66 of the GPCL prescribes: ‘… if a principal is aware that a civil act is being executed in his name but fails to repudiate it, his consent shall be deemed to have been given. This is the legislative presumption about expression of agency intent. Article 211 of the Contract Law prescribes: ‘Under a contract for loan of money between natural persons, if the payment of interest was not prescribed or clearly prescribed, the loan is deemed interest free’. This is the legislative presumption on expression of meaning for loan interest. Article 177 of the Opinions of SPC on Several Issues concerning the Implementation of the GPCL prescribes: ‘... if any heir does not explicitly express to give up the succession after the succession begins, he shall be deemed as accepting the succession’. This is the judicial presumption about meaning expression of succession. Article 54 of the Judicial Interpretations of SPC on Some Issues regarding the Application of the Security Law stipulates: ‘Where the common owner mortgages the jointly owned property without the consent of other owners, such mortgage is invalid. If the other common owners know or should know about such mortgage and do not object it, such act will be deemed as consent, and the mortgage shall be valid’. This is the judicial presumption about meaning expression of mortgage.G. The Presumption of KnowingThe presumption of knowing mainly refers to identify his knowing based on certain basic facts under the condition that the defendant of criminal litigation is not clear about constitutive elements of crime in his subjective cognition. For instance, article 10 of the Interpretations of SPC on Some Issues concerning the Specific Law Application for Trial of Criminal Cases of Destroying Forest Resources stipulates: ‘in article 345 ‘illegally purchases in a forest area trees, bamboo, etc., which he knows are felled stealthily or arbitrarily’, of which ‘knows’ means the act of know or shall know. In any of the following circumstances, the violator shall be determined to ‘shall know the fact’ as prescribed, unless otherwise proved be deceived: (i) purchases woods in an illegal wood trading place or selling unit; (ii) purchases woods sold at a price which is obviously lower than market; (iii) purchases woods sold against regulations.’ This is the judicial presumption about ‘clearly know stealthily or arbitrarily felled trees’.Article 9 of the Interpretations of SPC and SPP concerning Some Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights prescribes: ‘In any of the following circumstances, the violator shall be determined to ‘clearly know the fact’ as prescribed in article 214 of the Criminal Law: (i) He or it knows that the registered trademark on the merchandise he or it sells is altered, changed or covered; (ii) He or it has ever been imposed upon administrative penalties or has borne civil liabilities due to sale of merchandise under a counterfeited registered trademark, but again sells the merchandise under the same counterfeited registered trademark; (iii) He or it forges or alters the authorization document of the trademark registrant or knows that the said document is forged or altered; (iv) Other circumstances in which he/it knows or ought to know the merchandise under the counterfeited registered trademark.’ This is the judicial presumption about the sale of merchandise under a counterfeited registered trademark. However, sub-paragraph 4 of this article does not belong to presumption, for the diction describing basic facts in presumption rule shall be specific and clear. The ‘miscellaneous provisions’ make regulations allowing the judiciary to use their discretion to presume mixed with presumption rules.Article 6 of the Interpretations of SPC and SPP on Issues concerning the Specific Application of Law in Handling Criminal Cases Involving Stealing, Robbing, Swindling or Forcibly Seizing Motor-vehicles prescribes: ‘Where the motor vehicle involved in any act prescribed in article 1 or paragraph 3 of article 3 of this Interpretation falls into any of the following circumstances, the doer shall be determined as ‘knowingly’ as mentioned in the preceding articles: (i) There is no legal and valid voucher on its origin; or (ii) The engine number or the vehicle identification code number has been obviously changed and there is no legal certificate for the change.’ This is the judicial presumption of ‘knowing’ to buy stolen cars.H. The Presumption of PurposeThe presumption of purpose mainly refers to identify, based on given basic facts, whether the defendant of criminal litigation has ‘illegal possession purpose’ where it is not clear. For instance, article 2 of the Interpretations of SPC on Several Issues concerning the Specific Application of Law in the Trial of Cases on Swindling prescribes: ‘In any of the following circumstances, the doer shall be determined to illegally possess by means of swindling through economic contract: (i) Clearly know that he or it is not capable of performing the contract or offering effective security, but adopted the following deceitful methods to sign contract with other(s) to swindle property or money which is large in sum or caused bigger damages: the first is fabricating entity; the second is pretending another name; the third is using forged, altered or invalid invoice, letter of introduction, stamp or other certified document; the fourth is concealing truth, using knowingly invalid bill or other settlement voucher as contract performance bond; the fifth is concealing truth, using knowingly unqualified security mortgage, securities document as contract performance bond; the sixth is using other deceitful method to make the other party pay money or offer goods; (ii) Flee with, after the contract was signed, goods, money, down payment or deposit handed by the other party for the sake of guaranteeing the contract performance; (iii) Squander goods, money, down payment or deposit handed by the other party for the sake of guaranteeing the contract performance and make the above items impossible to return; (iv) Use goods, money, down payment or deposit handed by the other party for the sake of guaranteeing the contract performance to commit crime and make the above money or property impossible to return; (v) Conceal goods, money, down payment or deposit handed by the other party for the sake of guaranteeing the contract performance and refuse to return; (vi) After the contract was signed, by paying partial payment for goods to begin contract performance as a bait so as to swindle all money for goods, and refuse to pay the rest of money for goods without reasonable grounds during the prescribed time limit or payment period otherwise agreed by two parties.’Article 3 of the Interpretations of SPC on Several Issues concerning the Specific Application of Law in the Trial of Cases on Swindling stipulates: ‘In any of the following circumstances, the doer shall be determined to ‘aim to illegally possess and illegally raise funds by deceptive method: (i) flee with raised funds; (ii) squander raised funds to make it impossible to return; (iii) use raised funds to commit crime and make it impossible to return; (iv) commit other frauds and refuse to return raised funds or make it impossible to return.’ For the two regulations, the former is the judicial presumption that the defendant in contract fraud crime has the ‘illegal possession purpose’; the latter is the judicial presumption that the defendant in funds-raising fraud is for the ‘illegal possession purpose’. However, there are unclear ‘miscellaneous provisions’ describing basic facts in both presumption rules, which is a clear indication of confusing presumption regulations in legal and judicial explanations, thus uniformity and formalization are badly needed.In summary, presumptions are legal rules of indirect fact finding based on inference. In other words, all presumptions are of facts and by law, so the distinction of the presumption of law and presumption of fact is not rational and significant. Since the presumed facts are not equivalent to the objective fact, and the rule of presumption will only invert the burden of proof, all presumptions are rebuttable. In other words, the distinction of the rebuttable presumption and the irrebuttable presumption is meaningless.As for the question left at the end of the first Chapter, regarding the claim of torture, the readers of this article may have found their answers. There the author argued that although the law did not use the word presumption or presume, the provisions in the CPL implied a presumption. Now the author would suggest the creation of a more clear provision on the presumption of torture as follows:If any one of the following circumstances exists and the prosecution cannot supply the sufficient rebuttal evidence, it should be presumed that the confession was obtained illegally: (i) the suspect sustained a non-self-inflicted injury during interrogation; (ii) the investigators did not conduct the interrogation in the detention house in accordance with the law; (iii) the investigators did not use the synchronous audio-video recordings in the interrogation in accordance with the law.In fact, there have been some Internal Guidance Opinions issued by the judiciary torwards this direction, though they are not formal judicial interpretations. When applying this rule of presumption, the defendant shall bear the burden of proof of the basic facts, but not the presumed facts. That is to say, as long as the defendant provides sufficient evidence to prove the existence of one of the above mentioned basic facts, they can then request that the judge presume the existence of torture. Before making a decision on presumption, the judge shall give an opportunity for rebuttal to the prosecution. The rebuttal may take two directions: first, rebuttal of the basic facts, for example, proving that the suspect’s death or physical harm did not occur during the interrogation; second, rebuttal of the presumed facts, for example, proving that the cause of death of the suspect was a sudden illness, or proving that the injuries on the suspect’s body were self-inflicted. If the prosecution cannot provide sufficient evidence for the rebuttal, the judge shall presume that the confession was obtained through torture.Both the defendant’s evidence and the prosecutor’s rebuttal evidence shall be sufficient, but there is a difference in the standards for the two. For the defendant’s evidence, the standard of proof is a lower one, a probability of more than 30 percent; while for the prosecutor’s rebuttal evidence, the standard of proof is a higher one, a probability of more than 90 percent.The creation of presumption rules should observe the logic rules and the linguistic norms, and meet the following requirements: first, there must be an accurate description of basic facts; second, there must be a clear expression of the presumed facts; third, the relationship between the two must be legitimately explained; fourth, it is best to uniformly use ‘presume’ as the key word; if the use of ‘presume’ is inappropriate in a particular context, then the word ‘deem’ can be substituted. These are the prerequisites for the correct application of the rules of presumption in judicial practice.
