Administrative Standard Of Proof In The Proceedings

With the entry of China into WTO and implementation of the strategy of ruling the country by law,the status and roles of administrative trial become more and more prominent.The standard of proof is one of the important problems in the judicial practice.It is of great importance to study the problems of standards of proof in administrative litigation cases for promoting the perfection in administrative litigation evidence system and development of administrative litigation system.,making harmonious relations between judicial power and administrative power,and improving administrative trial quality.However,four many years,litte attention was paid on the question of our standard of proof in administrative litigation.According to the Administrative Procedure Law and related judicial interpretation,we can describe the standard of proof in administrative litigation as "accurate and sufficient evidence".As the single standard of proof lacks elasticity,it fails to satisfy the double needs of controling power and protecting rights,as well as justice and efficiency.Practice are developing continuously,while legislation are lagging far behind.It brings many negative effects,so the reality urgently need the research about the standard of proof in administrative litigation.The author affords some personal opinions about the reconstruction of the standard of proof in our administrative litigation,after considering many relative elements,through the expeditions of the standard of proof between the administrative litigation of the common law and civil law system,based on the concept of the standard of proof in administrative litigation.Therefore,the author tries to give a systematic discussion on the administrative proceeding standards of proof so as to reach a common sense for providing a truly feasible reference for the trial of concrete cases.There are three parts of the article,the first part is the summarization of the concept of the standard of proof in administrative litigation;the second part is the investigation of the foreign standard of proof in administrative litigation;the third part is the reconstruction of our standard of proof system in administrative litigation. Firstly,after contrasting among the concepts of standard of proof afforded by different scholars in different countried,to define the connotation of standard of proof in administrative litigation,we should set about from the relationship between standard of proof and legal truth,discretional evaluation of evidence and burden of proof.Witness standard is characterized by intangibility,obscurity,legality,as well as minimum.In contrast with the proving standards of civil litigation and criminal litigation,the proving stardard in administrative litigation has its own characteristics. Then the characters of the standard of proof of administrative proceeding are narrated with two points:flexibility and the re-examination features.At last,the role of the standard of proof of administrative proceeding are summarized through four aspects:the supervised effect on the adminitrative counterpart,the regulated effect to the administrarive behavior,proper restraint of discretional evaluation and the need of justice and efficiency.The second part is about the investigation of standards of proof of two legal systems,by listing a serial of classic countries of the two law systems,such as United States,Britain,Germany and France etc.Moreover,The general introduction afford plenty valuable experiences for the reconstruction of the standard of proof system for our administrative litigation.though comparing the features and valid bases of the Common law and Civil law systems.The third part the author do research on the ligislation and actual practice of proof of administrative litigation,as the starting point of reseach.We comb the related regulations of legislation and judicial interpretation in order to discover the legislation tendency of standard of proof in administrative litigation.The idealistic transition of china's legislators to purse the truth from objective truth to legal truth.In addition, we affirmed the discretional evaluation of the judge when they trying a case,then we deal with the defects and disadvatages of standard of proof in the current law of our country from the four aspects such as lack of rational standard of proof influcing judicial authority.After the analysis of the legislation on the standard of proof in the administrative litigation,the author research on the process of judicial practice in our country combined with two legal cases. The forth part is the emphasis,mainly discussing about our standard of proof of administrative litigation.First of all,the elements that should be considerate when perfecting the standard of proof of administrative litigation,including five elements:1 the purpose of administrative litigation;2.the value choice of administrative litigation;3.easy or difficult degree of identification;4.the degree of judicial review of administrative litigation;5.the type and character of administrative cases.Then we lay emphasis on how to reconstruct the standard of proof system of our administrative litigation specifically.The paper,based on insistence with the conception of legal truth, the different standard of proof should be applied on the accusers and defendants,and then the different standard of proof on the truth issue against defendants should be applied under the premise of division of normal and special situations.The standard of proof of accusers is the rational possible standard。The defendants's standard of proof can be summarized to two types under the premise of division of normal and special situations.The standard of beyond reasonable doubt should be applied on the normal situations,and the standard of excellent proof should be applied on the special situations as a supplement to the previous standard..At last,we can develop and improve the standard of proof in administrative litigation by means of establishing and perfecting related system.The system can be said in follows:a link for the standard of proof and burden of proof,the establishment and restraint of discretional evaluation and construction of the standard of proof in the administrative procedure.