Font Size: a A A

A Study On The Distribution Of The Burden Of Proof In Procuratorate's Administrative Public Interest Litigation

Posted on:2019-07-08Degree:MasterType:Thesis
Country:ChinaCandidate:Z DingFull Text:PDF
GTID:2346330545498399Subject:Law
Abstract/Summary:PDF Full Text Request
In recent years,with the development of China's economy and the improvement of comprehensive national strength,the protection of state and public interest has increasingly become a topic of great concern.It is particularly prominent in the aspects of food and drug safety,ecological and natural protection,and the protection of state assets,among which it is unavoidable that the administrative organs illegally exercise the power of the law or do not act as a violation of the state and the public interests.In June 2017,the new administrative procedure law issued by our country stipulates the main body of the administrative public interest litigation,which confirms the main qualification of the procuratorial organ to bring the administrative public interest litigation.The procuratorial organ's administrative public interest litigation has inherent rationality and is an inevitable choice in line with China's national conditions and political system.However,as the main body of the administrative public interest litigation,it has certain particularity compared to the traditional administrative litigation,so it is particularly prominent that the procuratorial organs bring up the distribution of the burden of proof in the administrative public interest litigation,and there are some disputes in the academic circles.To study the issue of the distribution of the burden of proof in administrative public interest litigation by the procuratorial organs is conducive to solving the specific provisions in the case handling and further perfecting the administrative public interest litigation system in our country,so as to better safeguard the public interests and realize the supervision of the administrative organs.What kind of burden of proof should be borne by both parties in the administrative public interest litigation? Some scholars agree with the point of view of the burden of proof in accordance with the rules of the civil procedure law.Some scholars agree that the defendant bear the burden of proof in accordance with the rules of the administrative procedure law,and some scholars believe that the procuratorial organs should assume the view point of promoting the responsibility according to the rules of the administrative procedure law.In the current rules,the relative ambiguity of the contents of the evidence required by the procuratorial organs is embodied in the following two aspects: the supervision of the specific administrative acts of the administrative organs and the protection of the public interests of the state and the society is the goal of the administrative public interest litigation,and the protection of the state and the public welfare involves the proof of the constitutive elements of the tort.In the current rules,there is a lack of clear provisions on the distribution of the burden of proof for the fact that the elements of tort constitute the elements of the infringement of the public welfare infringement;the problem of the distribution of the burden of proof in the traditional administrative litigation is distinguished from the case of inaction,and the procuratorial organs lack the detailed distinction between the administrative organs and the cases of inaction in the administrative public interest litigation.Fine stipulations.In the process of implementing relevant supporting measures,there exist some problems such as incomplete identification mechanism and obstruction of investigation and evidence collection.In the academic division of the distribution of the burden of proof,the point of view of the burden of proof in accordance with the rules of the civil procedure law can be adopted,and the legal presumption of the violation of the specific administrative act of the administrative organs is carried out.On the proof of the constitutive elements of the tort,it is necessary to clear the stipulations about the constitutive requirements of the infringement on the infringement of public interests;the distribution of the burden of proof should be refined as the distinction between the category and the inaction,and the administrative organs should not be fully regarded as the case in practice.In the improvement of relevant supporting measures,it is necessary to use expert opinions and expert assistant system to make up for the problem of unsound identification mechanism,and the corresponding rigid system guarantee should be given to the problem of investigating and obtaining evidence by the procuratorial organs.The procuratorial organs can move to the people at the level where the administrative organs do not cooperate and the circumstances are serious.The government or the competent department at the next higher level proposes procuratorial suggestions.
Keywords/Search Tags:Procuratorial organ, Administrative public interest litigation, Distribution of burden of proof
PDF Full Text Request
Related items