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On The Burden Of Proof In Administrative Litigation

Posted on:2004-07-27Degree:MasterType:Thesis
Country:ChinaCandidate:Q C ZhengFull Text:PDF
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Supreme People's Court's Regulations on the Problem of Proof in Administrative Litigation, which appeared in 2002, has appealed to quite a number of scholars, making them focus on that field. However, the research on it in our country isn't ripe so that we haven't reached a common definition of the concept of the burden of proof in administrative litigation. Some think that it is a burden of proof; some think it is a burden of act; others think it is the combination of a burden of proof and a burden of act. In fact, it refers that the party will lose the lawsuit under the circumstances that the fact of the case is unclear, that is to say the legality of the impeached concrete administrative act is unclear."The law is not just developing constantly. It has its history and recounts an experience." The burden of proof in administrative litigation originated directly from the burden of proof that has a history made up of the system of divinity evidence and the system of legal evidence and the system of discretional evaluation system, which are of close relation and orderly combination. The burden of proof can be traced back to Roman law, in which allocation of burden of proof is stipulated.On the nature of the burden of proof in administrative litigation are a lot of ideas including the Right Theory, the Obligation Theory, the Right and Obligation Theory, the Risk and Obligation theory, the Encumbrance Theory and so on, among which I have a preference for the Right and Obligation Theory. The burden of proof in administrative litigation is a means for both parties to support its own claim and defend its own interests by producing evidence. However, from another aspect of legal consequence or legal norm, the burden of proof is obligation, which is procedural and corresponds to the right emerging in procedure.In the process of allocating the burden of proof in administrative litigation, various factors should be weighed comprehensively. The first factor is the aim of administrative litigation. The allocation of the burden of proof must correspond with the aim of protecting the rights of both parties in the litigation. The second is the other participants in the litigation. The burden of proof must be allocated between the two parties. The last is the two parties' ability of producing evidence. It's unreasonable that the possibility of producing evidence is neglected in the burden allocating system. When the burden of proof is being allocated, the principle of balance and convenience must be adhered to.The characteristic of the burden of proof in our country's administrative litigation lies in that theprinciple is made clear that the burden of proof rests on the defendant. In sharp contrast, whether the burden of persuading and the burden of advancing in the Anglo-American law system or the objective burden of proof and the subjective burden of proof in the continental law system, more or less, the plaintiffs burden is added to, so that the counterplea in the court becomes much fiercer.In the actual practice, there's been a controversy among the academic circles on whether the regulative legal documents can be applied as litigation evidence. In my opinion, the regulative legal documents should be used as the evidence in administrative litigation, which distinguishes administrative litigation from criminal litigation and civil litigation. In the process of administrative litigation, if the duration for the administrative body to produce evidence isn't restricted, the plaintiff tends to act in a negative way or even refuse to participate in the litigation. For that reason, it is stipulated in the Administrative Litigation Law that administrative body should produce adequate evidence within 10 days during the pleading period to ensure the opening of evidence, which in return pushes forward the litigation procedure. In 2002, a series of regulations stipulated the cases in which the duration of producing evidence can be prolonged, in my opinion, which may help ensure the rights and interests of the plaintif...
Keywords/Search Tags:Administrative Litigation, burden of proof, droit devoir, province ascertain
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