Study On The Standards Of Proof In China Administrative Litigation

Little attention was paid on the question of our country's standard of proof during the proceeding of administrative. Theoretically, more attention was paid on the regulation about conclusive proof within the repeat of the 54th clause the 1st item of the"law of administrative proceeding", but in reality, there are many cases of variances with legal regulation. In practice, the explanation of local courts about the standard of proof is different from one to the other; the differences between theory and reality bring many negative effects. These all make it very difficult for the development of our administrative proceeding system; the reality urgently need the research about the standard of proof in administrative proceeding. Based on these, the penman discusses some standard of proof of administrative proceeding, affords some personal opinions about the reconstruction of the standard of proof of our administrative proceeding, after considering many relative elements, through the expeditions of the standard of proof between the administrative proceeding of continent law system countries and British-America law system countries, based on the concept of the standard of proof of administrative litigation.There are three parts of the article, the first part is the summarization of the concept of the standard of proof of administrative proceeding; the second part is the expeditions of the foreign standard of proof of administrative proceeding; the third part is the reconstruction of our standard of proof system of administrative litigation.Firstly, after contrasting among the concepts of standard of proof afforded by different scholars in different countries, the penman considers that the concept of the standard of proof should be defined from two aspects, one is from the angle of gathering info for the proofs, the other one is from the angle of the responsibility of quoting. After defining the concept of the standard of proof, the standard of proof of administrative proceeding is put forward, i.e. according to the regulations of administrative proceeding, the standard of proof is the legal demand that should be attained when litigants perform the responsibilities of quoting, certificate the facts of cases, is the standard when courts ascertain the facts of administrative cases, ascertain the facts of cases that are proved by the litigants of administrative proceeding. Then the characters of the standard of proof of administrative proceeding are narrated again with three points: the middle character, the multi level character and the re-examination character. At last, the effects of the standard of proof of administrative proceeding are summarized through four aspects: the supervised effect on the litigants of administrative proceeding, the regulated effect to the administrative behavior, the behavior criterion of the judges whether the specific truth can be confirmed and determinative efficiency of administrative litigation.The second part is about the expedition of the standard of proof of foreign administrative proceeding, mainly about the relative legislative regulations of the standard of proof in the administrative proceeding by listing a serial of classic countries of the two law systems, such as United States, Britain, Germany and France etc. It can be inferred from the introduction of the standard of proof of relative administrative proceeding from the main countries of Britain-America law system and the continent law system that though there exist many differences of the standard of proof of administrative proceeding among different countries, the differentia shrink, the homologies increase; the international countries all learn from each other: there are many homologies of the standard of proof among many countries'administrative proceeding. These afford plenty referenced experiences for the reconstruction of the standard of proof system for our administrative litigation.The third part is the emphasis, mainly discussing about our standard of proof of administrative proceeding, and it can be divided into two parts. The first part is the narration of the standard of proof of our administrative proceeding: first, the question of what is the standard of proof of administrative proceeding regulated by our active administrative proceeding law is defined, through the legislative regulations of our standard of proof of administrative proceeding law. Then the relationship between the standard of proof of administrative lawsuit and the standard of proof of administrative proceeding is discussed briefly. The last is that the"reconstruction"is necessary through summarization list of the standard of proof effect s of our administrative proceeding on the reality, because the active standard of proof cannot be simply applied within the single regulation of"abundant conclusive proof". The second part talking about how to construct the standard of proof of our administrative system scientifically and rationally: first, the elements that should be considerate when perfecting the standard of proof of our administrative should be defined, including six elements: 1. the purpose of administrative lawsuits; 2. the type and character of administrative cases; 3. the examination extent of administrative lawsuits, 4. the balance between equity and efficiency of lawsuit and administrative; 5. the advanced experiences of other countries; 6. the affection of constitution. And then, the reconstruction of the standard of proof system of our administrative proceeding is discussed specifically. It can be divided to two parts: one is the idealistic transition from objective truth to law truth. First, the phrase of"actual abundant evidence"standard is objective true standard of our three main legislation law is analyzed simply. Then, the standard of"law truth"is put forward. The reasons those penman supports are: first, law truth is adaptive with lawsuit proceeding one another; second, it is negative to our one dimension proof standard of our proof law if narrating the standard of proof of our administrative lawsuit mainly as law truth, but not objective truth; third, the lawsuit proceeding itself has compabibilitis with the standard of proof of law truth; at last, the standard of establishing law truth not only has the theoretical rationality, but also has the law basis. The other one is the definite construction of the standard of proof of our administrative lawsuit. When considering our scholars'opinions about the determination of the specific standard of proof, the opinions of the penman is also put forward at the same time. The penman believes, when confirming the specific standard of proof of administrative lawsuits, every rational reason should be considerate completely. First, the different standard of proof should be applied on the accusers and defendants, i.e. the standard of pulsion responsibility proof and suasion responsibility proof, and then the different standard of proof on the law issue and truth issue against defendants should be applied. The standard of proof of pulsion responsibility of accusers is the rational possible standard, which refers to the possibility of attaining certain basis or certain level, without ample credible certificates. The level requirements for the rationality are different for cases, based on the severity differences. The defendants'standard of proof of suasion responsibility can be divided into the standard of proof of law issue and the standard of proof of truth issue. Specifically, the standard of proof of law issue can be said in follows: first, the examination of law issues completely, i.e. reexamination; second, the strictest standard of proof of removing reasonable suspicions should be applied on the law issues. The standard of proof of truth issue can be summarized to three types refer to different issues: the standard of proof with clarity and persuasion, the standard of excellent proof and the standard of proof of removing rational suspicion. At the end of this article, the specific types of issues on which the three-type standard of proof should be applied are discussed in detail.Limited by the penman's abilities and time pressure, the discussion about the standard of proof is only set at direction level. As for the ranges that are not involved, the penman hopes to have the chance of further research around this question in the future.