Le rôle du juge pénal dans la charge de la preuve approche comparée des systèmes de common law et romano-germanique
The Role Of The Criminal Judge In The Burden Of Proof Comparative Approach To Common Law And Romano-Germanic Systems

Summary/Abstract: The paper analyses the role of the criminal judge in the burden of proof. The author presents comparative approach to Common Law and Romano-Germanic systems. In criminal proceedings, theory of proof is one of the most complicated issues. As regards the burden of proof, there are at least, two conceptions: adversarial and inquisitorial. According to the adversarial conception, burden of proof refers most generally to the obligation of a party to prove its allegations at trial. Indeed, the proceedings are considered as an activity in front of the Court. On the contrary, when it comes to the inquisitorial conception, the judge is in the middle of the trial, searching for the truth. His duty is to determine who committed the violation and how. Consequently, the proceedings are an activity of the Court (or more precisely of the judge). Nowadays two systems could be distinguished, especially when it comes to the criminal proceedings: Common Law system (England, North America, Italy...) and Romano-Germanic system (or European continental). Whereby Common Law system is more adversarial, Romano-Germanic system is more inquisitorial. So, the world of criminal proceedings has become a kind of melting pot. In the first part of the article, the author presents classical differences between these two systems, which are still significant. The second part is devoted to the modern convergences, gaining more and more importance. At the end, the author states that the best solution (or the least bad solution) is inquisitorial conception mitigated by adversarial one.

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