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On Burden Of Proof Of Plaintiff In Administrative Litigation

Posted on:2011-09-20Degree:MasterType:Thesis
Country:ChinaCandidate:D ChenFull Text:PDF
GTID:2166330332958312Subject:Constitution and Administrative Law
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The evidence question, which has always been the core of litigation activity, has been a closely watched legal system, whether in theoretical research of proceeding or in litigation practice. The burden of proof is a top priority problem of evidence. In our country, the research of"burden of proof"does not have a long history. Many questions still have no system of rules. The burden of proof of administrative law not only has many common with civil law and criminal proceedings, but has its particularity."Compared to the prosperity of evidence research in criminal and civil litigation areas, the research of evidence in administrative litigation is far from satisfactory."With the development of the practice, the burden of proof of plaintiff in administrative litigation is an unavoidable problem.The Administrative Procedure Law of 1989 first proposed the conception of"the burden of proof". Unfortunately, although some motion of the burden of proof , the burden on the plaintiff was not involved. In order to address the legal gaps in the plaintiff, the Supreme Court passed the interpretation some issues on implementation of The Administrative Procedure Law. The Interpretation clearly put forward the concept of"the burden of proof of plaintiff"for the first time, making important supplementary provisions to the system of administrative proceedings evidence. Adopted in 2002, The Regulation of the Supreme Court on some issues of administrative litigation evidence made further refinement on the burden of proof of plaintiff in administrative litigation. The research of the burden of proof of plaintiff in administrative will be of great significance to the improvement of the system of administrative litigation evidence to guide administrative judicial practice.The dissertation consists of the foreword, main text and conclusion. The main text has four chapters.The first chapter is the mechanism analysis of the burden of proof of plaintiff in administrative proceedings. Firstly, this part defines the conception of onus probandi and discriminate onus probandi and the right to present evidence. Then this part continues to prove the rationale of plaintiff onus probandi in administrative proceedings and to introduce the different viewpoints of the plaintiff onus probandi among the current theorists.The second chapter is the legislative research of the burden of proof of plaintiff in administrative proceedings. This part analyses the related stipulation of plaintiff onus probandi in administrative of The Administrative Procedure Law of 1989,The interpretation some issues on implementation of The Administrative Procedure Law and The Regulation of The Supreme Court on some issues of administrative litigation evidence. Combined with the United Kingdom, United States, Japan, France and other relevant legislation, then the part carries on the whole reconsideration to our country plaintiff onus probandi in administrative proceedings.The third part is the positivism self-criticism of the burden of proof of plaintiff in administrative proceedings. This chapter explained the problem existed in reality one by one of the three items of plaintiff onus probandi which stipulate by the judicial interpretation: the prosecution condition, the case of nonfeasance and the administrative compensation case .Finally, attempted to find the crux of the problem.The fourth chapter attempts to consummate to the burden of proof of plaintiff in administrative proceedings, separately give certain consummation and revision in the thought , legislation and practice.
Keywords/Search Tags:Administrative Litigation, the Burden of Proof, Plaintiff
PDF Full Text Request
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