On The Distribution And Dransfer Of Onus Probandi In Administrative Suit

Onus probandi is a litigation system that originated from ancient Roman law. It has its own complexity in administrative lawsuit and concerns directly the accomplishment of the objective values in the suit. So there should be some beneficial discussions about problems concerning the meanings and natures of onus probandi, the distribution of onus probandi during administrative suit and the transfer of onus probandi. Under the circumstances of socialist market economy, and with the developing judicial practices as well as the accumulated lawmaking experiences, our discussions could be helpful to further improvement and development of the administrative litigation.Considering the above objectives, the first part of this article is about the researches on the onus probandi in administrative suits, emphasizing the analysis about meanings and natures of onus probandi. Onus probandi means that should the party fail to provide any or enough evidence for supporting his allegation or proving the reality of his case, he may risk losing his suit. Using domestic and overseas lawmaking and judicial practices for reference, the writer adopts a theory of droit and obligation to reveal the nature of onus probandi, in which onus probandi lying on the defendant is not only a general lawsuit obligation but also a legal responsibility. Distribution and transfer of onus probandi in administrative suit is the core of this article. The distribution of onus probandi is a rule that law determines which party has the burden of proof. The most perfect rule of distribution is a combination of the values of justice, benefit and efficiency, which can be realized the farthest, the rule also lies on the agreement between the accomplishment of those values and the immanent spirits of proceeding law and substantial law. In administrative litigation, it is the defendant that undertakes the burden of proof for his concrete prosecuted administration behavior, embodying the distribution principles of civil action, which says, "Someone advocates, someone puts to the proof". But because of the complexity and variety of the administrative case, it is impossible to apply automatically the general rules of onus probandi to all cases. Under certain conditions, onus probandi may transfer. However, it is always a unique principle in administrative suit that onus probandi lies on the defendant, and that the plaintiff undertakes the burden of proof is only a special case. When onus probandi transfers, attentions should be paid to protecting the plaintiff's lawful rights, so as to achieve the purpose of impelling the administrative organ to execute its duty according to law.