Judicial Presumption of the Clear Knowing in Cultural Relics Crimes and Its Improvements

Abstract

Presumption is the main approach used in criminal justice practice in China for determining one’s clear knowing, and there are sufficient standards for it in the crimes of intentionally damaging cultural relics, scenic spots and historical sites. The presumptions of one’s clear knowing regarding the crimes of intentionally damaging cultural relics and scenic spots stipulated in Article 324 of Criminal Law of the People’s Republic of China exhibit three structural types: “presumption as the mainstay with inference as a supplement,” “comprehensive presumption as the mainstay with single presumption as a supplement,” and “presumption based on general possibility as the mainstay with presumption based on high probability as a supplement.” Currently, China lacks clear legal rules for presumptions of one’s clear knowing related to the crimes of intentionally damaging cultural relics, scenic spots and historical sites. When relying solely on Article 14 of the Criminal Law to determine one’s clear knowing, it often leads to excessively high standards of determination and unreasonable specific measures. Based on the distinction between "intentionally targeting specific cultural relics, scenic spots, and historical sites" and "knowingly causing damage to cultural relics, scenic spots, or historical sites as a result of one's own actions”, Chinese judicature should improve the basic rules for presumptions of one’s clear knowing related to the crimes of intentionally damaging cultural relics, scenic spots and historical sites. It should establish presumptive empirical rules centered on the rationality of ordinary people and refine the content and methods of presumptive knowing.