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Administrative Proceedings, The Burden Of Proof "

Posted on:2001-10-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:L Q LvFull Text:PDF
GTID:1116360002952499Subject:Procedural Law
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The study of burden of proof in judicial review proceedings may eventually resolve some of the problems faced in such processes, and aid the construction rules dictating the allocation of the burden of proof in those proceedings. Burden of proof means that where the legal issue is uncertain, the party bearing that burden will fail. When formulating the theory of burden of proof we know that the facts are not always certain and that this uncertainty exists in the majority of cases. Furthermore, it is necessary for the court to pass judgement. The court has a duty to settle disputes even where the facts are not clear. Burden of proof in judicial review is somehow different from that in civil and criminal cases, most rules being stipulated by procedural, as well as substantial law. In judicial review, the government always bears the burden of proof, rarely does the plaintiff bear this burden. In assigning burden of proof we must obey the rules of equality, science and efficiency. The customary rule is that the party bringing the claim should bear the burden of proof. However, in judicial review, the government, though the defendant, always bears the burden .The plaintiff, though the petitioner, is relieved of that burden. In administrative proceedings, the government bears the burden of proof However, in some cases, such as licensing, the applicant assumes that burden. Assignment of that burden of proof in administrative proceedings is a serious question deserving review by the court when deciding the legality of the administrative conduct. Assignment in different types of conduct varies. To fulfil the burden of proof one should obey a number of rules. First, the party bearing that burden must produce required evidence within a period of time. Second, the party may only produce a certain type of evidence. Finally, there are certain qualitative criteria within which the evidence must be in accordance in order to be admitted. The courts can deduce the facts only by studying all the evidence presented by both parties. However, there are some circumstances, such as presumption, judicial review and where a party makes an admission, where the court may deduce the facts without evidence. I advocate reforming judicial review through study of the burden of proof In doing so we may determine a system of precedent through which a method for allocating burden of proof may be established. Simultaneously, we may reconstruct the system of supervision ofjudgement.
Keywords/Search Tags:Administrative
PDF Full Text Request
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