Research On The Non-existence Of The Burden Of Proof In Litigation For Government Information

Government information inexistence is one of the replies about Information disclosure application provided "The Government Information Disclosure Regulations" (here in after referred to as" Regulations") and also common sue reason of the government information disclosure lawsuit. Around the local annual report on government information disclosure work, the proportion about the amount of government information inexistence replies take in the total quantity of government information disclosure is gradually increasing, accordingly, the amount of government information inexistence litigation keeps increasing. Because of the negativity attribute about information inexistence, replies are too simple, also the relevant laws don't have detailed rules about this reply, which result in many problems, such as the object of proof is ambiguous, do have to prove the information do not exist and how, how to protect the right to know of applicants, and how to balance the disparity in position between prosecutor and defendant, discussion on details is very brief in theory circle. This situation results in big difference in adjudication of this kind of case in different courts during the practice, which caused great damage on the justice, authority and reliability of judicature on information disclosure lawsuit.This article suggests that government should give specific reason for why the information does not exist when the government did the reply and prove it in court. Due to the negative attribute of information inexistence, it should be proved by indirect method. Combined with field lawsuit, the legal rules and facts are the preconditions for making or obtaining information by government. Government should prove these two preconditions are all or part of missing when it claimed that the information applying for is absent. This burden of proof is essentially the obligation of government to give reasons when it replies that the information is absent, the obligation precisely is to give reasons on legal rules and facts. Secondly, when the government is equipped with those two preconditions while making or obtaining information, it should prove that it has fulfilled the duty to find reasonably. Otherwise, in practice, different courts have different answers on whether the government has the obligation to give reasons on why the information is absent, this also leads to different judgmental criterions in similar lawsuits.The burden of proof not only apply the general principles which is rated in "the Supreme People's Court on some issues of the administrative litigation evidence rules" (here in after referred to as "Evidence Provisions"), but also should consider the vindicability of the negative fact that the information inexistence and the difficulty of proof. This text is aimed at identifying the burden of proof between plaintiff and defendant by practice research, to figure out the ambiguity in substantive law about government information disclosure by litigation practice, to perfect and concretize the burden of proof between prosecutor and defendant in the litigation. This is beneficial for plaintiff and defendant to definitude the focus of their burden of proof, improve litigation efficiency, save the judicial resources, and it's also conducive to enhance the rationality and acceptability of the decision of the court.Besides the introduction, this article can be divided into three parts:The first part:The government information inexistence summary. At first, this part did a research on the replies of government information inexistence about several local governments and finds that the proportion about the amount of government information inexistence replies take in the total quantity of government information disclosure is gradually increasing and big, which generate more cases aimed at information inexistence, we also should put more emphasis on the issues in this litigation. Secondly, this text understands the concept of government information inexistence in two angles including legislation and fact and thinks that the court should comprehend in the first way. Meanwhile this article summarize the reasons of the administrative organ reply the information is absent, because these reasons also affect the concrete content of the burden of proof. This part also states the major issues in such litigation, including ambiguous object of proof and how to prove the negative fact that the information inexistence.The second part:The object of proof in government information inexistence lawsuit. At first, this part elaborates the problems about the object of proof, thinks that it should follow the content of substantive and substantive justice and procedure justice to confirm the object of proof. This article thinks that the government should prove the reason of why the information is not absent, the connotation of article 21 item 3 of "The Regulation" includes the obligation to give reason of the government. This is the embodiment of legal arid reasonable administrative conduct in government information inexistence lawsuit. The burden of proof of the government about the lack of the legal rules and facts and it had fulfilled the duty to find reasonably is also an indirect method to prove why the information is absent.The third part:The burden of proof between plaintiff and defendant in government information inexistence lawsuit. The burden of proof can be divided into two aspects including objective and negative based on the character of the burden, the part concertizes them. The objective burden of proof of the plaintiff is to prove the procedural item, the subjective burden of proof is different in different case, it's flexible and multiple. The key of the burden of proof of the defendant is how to proof the information is absent. This article starts with the two preconditions, the government should proof that the legal rules and facts are all or part missing. What's more, the government also should prove that it had done its best to search the information, the character of searching, the range and measure, the situation about government information disclosure in our country, all these do great effect in how to finish the burden. The subjective burden of proof of the defendant are also different in different lawsuits, the executive branch is spontaneous in it.