Study on the Start-up Procedure of Forensic Identification for Mental Disorder
|Keywords||criminal responsibility mental disorder start-up of identification burden of proof|
Mental disorder has been an important defense in the action, and it is also a crucial right for the litigant. The first step of this defense is the start-up procedure of forensic identification successfully. However, there are many confusion on how to start the procedure in reality. From the case of QiuXinghua happened in 2006 to the judgement of Akmal in 2008, the Supreme People’s Court spend several years on making a decision about how to start the forensic procedure and how to allocate the burden of proof. Yet such a conclusion has been proved invalid through the failed judgement of some related cases, such as the State sue ZhengMinsheng and HeShenkai. Scholars have also made suggestions through their essays, however, for the protection of human rights , most of them emphasized that the defendant should have the right to start the procedure but they neglect the rules of the start-up procedure, which is being the task of this essay.The main body of this article is seperated into five chapters. In the first chapter, the author demonstrated the criminal responsibility of the mental disorders at first , then analyzed the meaning of mental disorders and mental disorder as the legal basis for defense; In the second chapter, at first she analyzed "Everybody is sane" ,which is the basic presumption ,and then some typical rules in the Common law and the Civil law ; The third chapter introduced the evidence rules for start the forensic mental in two legal systems , and then made some comments; In the fourth chapter, according to some typical cases occurred in China in recent years, which related to the start procedure for the identification of mental disorder; the author carefully generalized some problems existed in the start-up procedure of forensic identification for mental disorder in China; In the chapter 5, based on the previous demonstration, and combined with the analysis of some typical cases, the author raised some tentative proposal for the reform of the start-up procedure of the identification. The author also expected to promote deeper research of this topic on the base of the fruit in this article.