关键词: 幽灵抗辩, 证明责任, 无罪推定, 事实推定, 间接证据

Abstract: Ghost defense in drug cases may block the key prosecution proof for consistency illegality, and responsibility of crime elements, which constitutes the essential elements in the conviction of crime, or it may affect the measuring of criminal liability. For the "ghost defense", the common law system and the civil law system have different patterns in the distribution of burden of proof, but the defendant who proposes "ghost defense"without providing any proof would encounter disadvantageous litigant result. According to rule of thumb, the presumption of innocence and the special nature of drug cases, the defendant should take the burden of proof for ghost defense. The legislation may consider amending key elements of drug-related crimes, for example, replacing the "deliberate" intention of crime with a more generalized one, and defining the "unfinished" nature of the crime of drug possession for a reasonable allocation of the burden of proof in drug crimes. In judicial practice, demonstration of the transfer of burden of proof and clarification of the range of the defendant's burden of proof, rational use of presumption of fact, and the use of circumstantial evidence all contribute to restrain the application of "ghost defense".

Key words: ghost defense, burden of proof, presumption of innocence, presumption of fact, circumstantial evidence