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On The Assignation For Burden Of Evidence In Administrative Procedure

Posted on:2010-03-05Degree:MasterType:Thesis
Country:ChinaCandidate:Y D LiFull Text:PDF
GTID:2166360278476197Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In administrative procedure, in order for the judge to support one's proposition, the litigant provides a series of evidence to justify his or her proposition. In the research of administrative procedure theories and judicial practice, people have already realized that the issue of allocating the burden of producing evidence is of the utmost importance among the issues of evidence. The burden of producing evidence during administrative procedure means that, in the course of the procedure where the accountability of the facts about the case is unclear, the litigant that takes the responsibility of producing evidence must accept adverse consequences of the procedure. More specifically, in China, it refers to the fact that, when the People's Court examines the legitimacy of administrative department's specific administrative act based on the plaintiff's accusation and finds that it has a unclear status, the party that takes the responsibility of producing evidence must accept the consequences of defeat suit.With regard to how to assign the burden of producing evidence during administrative procedure, there are different opinions within our academic community and a consensus has not been reached. Article 32 of the Administrative Procedure Law of People's Republic of China states that the defendant has the burden of producing evidence for his or her specific administrative act for which he or she should provide evidence and supporting standardized documents. Therefore, our country has clearly stated on the issue of assigning the burden of producing evidence that, it is the defendant that must accept the burden.From this point on, the fact that the defendant must accept the burden of producing evidence during the administrative procedure had once become an agreement reached by people from the field of theory and practice. Although the judicial interpretations that appear later on become aware of the plaintiff's burden of producing evidence and established relevant rules, the significance of"the defendant taking the burden of producing evidence" in the assignation of burden during the administrative procedure remains unchanged. However, the importance of plaintiff taking the burden of producing evidence should not be ignored. Due to the irreplaceable advantages of the defendant of administrative department in terms of authority and producing evidence, having the defendant to take the burden of producing evidence for specific administrative act is both good for clarifying the facts about the case and in accordance with the fundamental principle of fair and justice.Nevertheless, when the plaintiff claims his or her rights, he or she should also take the relevant burden of producing evidence so as to justify the legitimacy and rationality of his or her claim. Therefore, the author thinks assigning the burden of producing evidence during administrative procedure should be based on the principle of"he or she who claims produces evidence", not just simply let the defendant take it.The burden for the defendant to produce evidence during administrative procedure is divided into two parts. The first part refers to the content boundary about the responsibility of the defendant producing evidence: firstly, the defendant should take the burden of producing evidence for his or her specific administrative act; secondly, the defendant should provide all the evidence with regard to the legitimacy of his or her specific administrative act. The second part refers the evidence boundary about the responsibility of the defendant producing evidence. The boundary differs when the types of administrative cases differ. The evidence boundary which prosecutors are responsible to in administrative cases shall include several aspects. Firstly, prosecutors shall be responsible to the burden of producing evidence in such administrative cases. Secondly, the prosecutors shall be responsible to the contradictive burden of producing evidence regarding to the legalities of the specific administrative acts. Thirdly, prosecutors shall be responsible to the burden of evidence producing regarding to both the facts representing the justice of the administrative penalty and the facts, which are lawful duties the defenders shall take. The Last, the prosecutors shall be responsible to the burden of evidence producing against inaction. Additionally, as the legislations have been set for evidences producing, it is also justified that People's Court shall have the rights to obtain evidences. Hence, it is an essential part within the study of the burden of producing evidence in administrative procedure.
Keywords/Search Tags:Administrative procedure, Burden of producing evidence, Assignation
PDF Full Text Request
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