On Distration Of The Burden Of Proof In Adminitrative Litigation

The burden distribution of proof in administrative litigation is a very crucial theoretical and practical question. In many countries whose administrative proceedings is relatively mature, there is the same rule of "who prosecutes, who proof" in the criminal, the civil and the administrative litigation. Chinese administrative litigation use western nation's system for reference, but on the distribution of proof burden, China still keeps its own characteristic. Three kinds of procedural laws are different from each other in the stipulation form for burden distribution of proof, but essentially they are all the executor of the rule "who prosecutes, who proof". Undoubtedly, both the practice and the system for burden distribution of proof are not perfect in our country. This article draws up from the following five aspects to study the burden of proof in administrative litigation:The first part is mainly about the burden of proof and the definition of the burden distribution of proof. It contains two parts: Primarily, by comparing with foreign laws, the first part gets the conception of the burden of proof in our country. It prescribed in Ancient Roman Law that the party who alleges the fact has the burden of proof that should not only offer the proof, but also bear the aftermath of unable proof. It adopts the theory of dual signification in System of Anglo-American Law. Firstly, if none of the proofs mentioned can prove the allegation, the party who presented the fact will lose in litigation; secondly, the party who presented fact has the obligation to offer proofs against the disputed fact foremost. It is divided into subjective burden of proof and objective burden of proof in Civil Law System. The regulation in our country, in my opinion, basically follows the conception of Ancient Roman Law.Then the article introduces the common theory of burden distribution of proof, including the statute classification theory, the theory of the factor unproved classification, the theory according to property of affair, and the theory of legal material classification.The second part mainly analyzes the burden of proof in administrative litigation. It carries out research by separately analyzing the meaning and property of burden of proof in administrative litigation and the classification on burden of proof in administrative litigation. There are aggregately four aspects of meanings: executor, object of proof, standard of proof and legal consequence on burden of proof, which lead to the concept for burden of proof in administrative litigation comprehensively: responsibility of the party of litigation to bear the obligation of offering proofs proving the allegation according to the standard of proof. If the party who has the burden of proof can not offer any proof or his proof can not meet the standard, he or she should bear a loss of litigation for his own allegation or a disadvantaged legal consequence. And then, by the contrast of the doctrines, we can know the property for burden of proof in administrative litigation is the litigation right of the party and also the litigation obligation of the party.The second question of this part is about the classification for burden of proof in administrative litigation. It is divided into advanced burden and persuaded burden in the System of Anglo-American law. It contains objective burden of proof and subjective burden of proof in Germany. The author prefers the former to the other.The third part is a further elaboration on burden distribution of proof in administrative litigation. It first investigates on the common standard and special standard for burden distribution of proof in administrative litigation and summarizes the character for burden distribution of proof in administrative litigation, and then introduces the distribution for burden of proof between the plaintiff and defendant. It comprehensively concludes the common principle for burden distribution of proof in administrative litigation: Defendant bears the persuading responsibility to the legality of concrete administrative act sued. Plaintiff bears the advanced responsibility to its illegality. Defendant bears persuading obligation to the fact of justice administrative punishment and the fact of non-performance of legal duty with legal reason. Plaintiff bears advanced obligation to the fact of administrative punishment with obvious unjust and the fact of defendant should perform legal duty. As for as the procedure fact of administrative litigation, plaintiff and defendant separately perform advanced burden to their litigation allegation.The fourth part is our reality of the burden allocation of proof in administrative litigation. This part intends to make some research on the allocation of the burden of proof of administrative litigation in "Administrative Procedure Law", "Explanations on the implementation of the "PRC Administrative Procedural Law by The Supreme People's Court" and "Provisions on a number of issues in administrative litigation proof". There are a lot of aspects that have practical significance. However, the limitations of the theory and practice in the provisions of the Administrative Procedure Law and the set thinking reflected in the number of judicial interpretation are what weshould seriously review. The fifth part is the legislative proposals about the burden allocation of proof in administrative litigation. This part embarks on the provisions about the allocation of the burden of proof in administrative litigation, and draws out the positive significance of legislative administrative proceedings: China is not a country with tradition of "civilian vs. official", and the concept of the "official oriented" is deeply entrenched. In this sense, the establishment of administrative litigation system itself is a historical progress that is worthy of recognition. The compilation of the defendant's burden of proof in the administrative procedural law clearly and unmistakably expresses the value concept of the legislators to protect the legitimate rights and interests of the relative party. This has positive significance for citizens, corporations and other organization to protect their legitimate rights and interests according to law, and it is beneficial for the administrative organs to promote law enforcement。However, because the early identification of the defendant as the undertaker of the burden of the proof according to Administrative Procedure Law, to some extent this buries the independence of plaintiff's burden of proof in administrative proceedings. This led to the helplessness and embarrassment of"consider something as it stands"in the subsequent judicial interpretations. While affirming that the executive authorities sued should proof without exception, these systems cite the limited circumstances in practice when the burden of proof should be borne by the plaintiff, but do not consider the general principal of the burden of proof on the plaintiff. According to this the author expounds her ideas on the revision of some system, and from a theoretical perspective carries out the reconstruction of the allocation of the burden of proof rules for administrative litigation.