Burden Of Proof In Administrative Procedure

In this thesis the author tries to study on the general principle of theburden of proof and illustrates the definitionand nature of the burden of proofthrough the comparative analysis of the meanings of the burden of proof in thecountries around the world. In the meantime, the author affirms thedistribution standard of the burden of proof and emphasizes the burden ofproof of the plaintiffs which is one of the characteristics of this thesis. This thesis consists of four parts. Part one is focused on the summarization of the burden of proof inadministrative procedure. To probe into the burden of proof in administrativeprocedure, the definition of the burden of proof in the administrativeprocedure must be cleared at first. The distribution of the burden of proof inadministrative procedure is mixed up because of the different comprehensionof the definitionand the nature. This part is made up of two questions: First,the summarization of the burden of proof. Second, the summarization of thedistribution of the burden of proof in administrative procedure. In the former,the author compares and evaluates the primary theories of the burden of proofin common law family, civil law family and China. Then the author reachesthe conclusionthat the definitionof the burden of proof includes not only thesense of action but also the sense of result. The solving of the former questionbenefits the latter by a long way. At the same time, the author studies thetraditional theories of the nature of the burden of proof comparatively andevaluates them. The author thinks that it is accord with the necessity of thetheoryand practice to define the nature of the burden of proof as a legal rule.The author brings forward personal opinion: The nature of the burden of proofin administrative procedure is not a right or an obligation, and not theobligation of risk or the assume of legal result. The nature is a legal rule to -46-distribute the burden of proof in the litigation. The defined nature enables theresearchers to emphasize the enacting and practicaloperation. Part two is focused on the distribution of the burden of proof inadministrative procedure. The main aim of the research on the burden of proofis to study the distribution of the burden. The part is composed of fourquestions. Firstly, the summarizationof the distributionof the burden of proof:First, the definitionof the distributionof the burden of the proof. The meaningof the distribution of the burden of the proof is that which side of the partiesshould carry the burden of proof of with regard to the dispute of the lawsuit.Second, the significance of the distribution. The author thinks that thedistributionof the burden of proof does good to the efficiency of the litigation,settles the bothers quickly and stabilizes the society. Second, the distributingstandard of the burden of proof: First, the principle of the distributionincluding the principle of justice and the principle of objectivity. Second, thediverse opinions of the distributing standard of the burden of proof. Third, therequests to affirm the standard. Thirdly, the distribution of the burden of proofin administrative procedure in our country. The author discusses the legislationin the recent and analyzes the distribution. In the fourth question the authorputs forward personal opinion of the distributionon the basis of the analysesand comparisons above. Part three is focused on the burden of proof of the plaintiffs inadministrative procedure. In our country it is taken for granted in the academeand in the practical field that the defendants bear the burden of proof,otherwise they will lose the lawsuit. But the egregious emphasis on the burdenof proof of the defendants results in the lean researches on the burden of proofof the plaintiffs and the puzzles in the judicial practice. It badly blocks thedevelopment of administrative procedure. The author tries discussing...