The Burden of Proof on Gang-related Property: Defunctionalization and Regulation

Anti-Organized Crime Law establishes the proof system of gang-related property. However, due to the abstraction of the proof system and the disagreement of the distribution of the burden of proof, the proof system has the risk of blurring the burden of gang-related property, and forms a tendency of confiscation that is unfavorable to the accused. The defunctionalization of the burden of proof is manifested as the defunctionalization of the main body, the content and the function of the burden of proof. In view of the problem, criminal presumption rules, inversion of burden of proof, transfer of burden of proof and other distribution schemes of burden of proof cannot solve the problem. In accordance with Article 45 (3) of the Anti-organized Crime Law, the public prosecution should bear the burden of proof on gang-related property, moderately reduce the evidentiary requirements and proof standards of the prosecution’s allegations to ease the prosecution’s difficulty in proving, thus negate the vanity of the burden of proof. At the same time, the defendant bears the obligation to clarify the case of gang-related property, and participates in the identification of gang-related property, so as to realize the legitimacy identification of the nature of the gang-related property.