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Research On The Proof Burden Of The Third Party In Administrative Litigation

Posted on:2013-04-15Degree:MasterType:Thesis
Country:ChinaCandidate:J Y ZouFull Text:PDF
GTID:2256330395988276Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
Burden of proof in administrative litigation consists of objective burden of proof andsubjective burden of proof. The nature is the former one, for the one who has objective burdenof proof would firstly offer evidence to illustrate subjective burden of proof of the case.However, different types of the third party have different burden of proof in administrativeprocedure. The third party of administrative litigation can be divided into participating inlitigation by notification or application during the litigation procedure. After the procedure, itcan be divided into similar plaintiff status, similar defendant status and independent thirdparty according to different claims and legal status. Different types of the third party havedifferent burden of proof for they have different relationship and legal claim with plaintiff anddefendant. Meanwhile, administrative departments participating as the third party also havespecial burden of proof because they have special relationship with the defendant. Existinglaws in China are lack of direct regulation on the third party’s burden of proof. Suchregulations are sporadically seen in Interpretation on Several Issues Involving Implementingthe Administrative Procedure Law of PRC by Supreme People’s Court and Stipulation onSeveral Issues Involving Regulations on administrative legislative proof by Supreme People’sCourt. However, there are conflicts existing in the two regulations. So they need perfection byimproving legislation, interpreting laws and applying judicial practice flexibly.This thesis consists of there parts. According to related cases of the third party’s burdenof proof, the first part will expose existing problems on the third party’s burden of proof inlegal norms and judicial practice. Facing the judicial dilemma, the thesis seeks legislativebasis and theoretical support actively. By analyzing administrative procedure law and relatedexplanations in our country, this part will introduce current situation of the third party ofadministrative litigation and the third party’s burden of proof in China’s legislation. Throughdescription of different types of the third party, this part will also explain the third party’sburden of proof from different phases of litigation and different status of the third party. Thesecond part will expose the conflicts of laws on the basis of analyzing present administrativelitigation law in our country. First, multiple conflicts exist in legal norms, leading the courtdoesn’t know how to follow. Then the differences between the theory of burden of proofresult in contradiction of understanding burden of proof. Moreover, the theory of burden of proof in China legislation is influenced by not only continental law system, but alsoAnglo-American law system. To deal with the problem of the third party’s burden of proof intheory and practice, the third part will refer to Taiwan’s experience and discuss different typesof the third party’s different burden of proof in different phases. Based on previous discussion,the fourth part will construct a system of the third party’s burden of proof in administrativelitigation. It will analyze from the aspect of types of the third party, burden of proof inadministrative procedure and the burden of proof of special administrative departments in thebasis of legal norms.Due to the defects of legal system and theory, the construction of the third party’s burdenof proof in administrative litigation needs developing in our country and learning advancedexperience from foreign countries, so that the system can be the backbone of administrativelitigation in China.
Keywords/Search Tags:the third party of administrative litigation, burden of proof, objectiveburden of proof, subjective burden of proof, conflict of law, burden of proof inadministrative procedure, auxiliary intervention of administrative department
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