Research On Burden Of Proof In Administrative Public Interest Litigation In China

The burden of proof has always been the "backbone of litigation",which shows that the burden of proof plays a vital role in the litigation process,the administrative public interest litigation is no exception.In 2017,China formally wrote the system of administrative public interest litigation into the Administrative Procedure Law,which shows that the "new administrative litigation" mode proposed by the procuratorial organs to protect public interests has been formally established.In principle,it should follow the rules of administrative litigation.However,it can not be neglected that the Administrative Procedure Law focuses on the relief of individual legitimate rights and interests in its functional mode,and administrative litigation in China is a "subjective litigation" mode.Administrative public interest litigation tends to protect public interests in its functional mode,which is an "objective litigation" mode.The different subjective and objective litigation modes directly affect the applicable litigation rules.For example,on the burden of proof,in the administrative litigation mode of "civil prosecutor",because of the disparity in the ability of proof between the plaintiff and the administrative organ of the defendant,and the administrative organ must follow the corresponding requirements of administrative procedures when making administrative acts,and give a comprehensive consideration from the perspective of litigation fairness,the Administrative Procedure Law states that the plaintiff and the administrative organ of the defendant have different abilities of proof.It is clearly stipulated that the administrative organs should bear the burden of proof for their administrative acts in administrative litigation.This rule is also called the "inversion of burden of proof" rule.However,the system of administrative public interest litigation which opens the administrative litigation mode of "official prosecution" has its particularity.The procuratorial organ is the only legal subject of administrative public interest litigation.The administrative public interest litigation must follow the legal pre-litigation procedure.That should include the infringement of public interest besides the legitimacy of administrative action.As a result,it poses a challenge to the burden of proof system in administrative litigation based on the mode of "civil prosecutor".How should administrative public interest litigation deal with this challenge? This is the question that this article tries to answer.In fact,the "Measures for the Implementation of the Pilot Work of the People's Procuratorate on Public Interest Litigation" issued during the trial period of the procuratorial organs instituting administrative public interest litigation has clearly stipulated which items the procuratorial organs should be,but it only applies to the pilot areas,and is still not clear enough.The Administrative Procedure Law revised in 2017 and the Interpretation of the Supreme People's Procuratorate of the Supreme People's Court on Several Questions Concerning the Application of Law in Procuratorial Public Interest Litigation Cases implemented in 2018 do not stipulate,the lack of legislative norms also increases the operability of the system to a certain extent difficulty.In judicial practice,it is also a case of administrative public interest litigation.However,whether during the pilot period or after this system,there is no clear standard for the procuratorial organs and administrative organs to bear the burden of proof on what matters.This not only increases the difficulty of prosecution by procuratorial organs and response by administrative organs in administrative public interest litigation,but also is not conducive for judges to find out the facts of cases,investigate the illegal acts of administrative organs,and protect national interests and social public interests in a timely and effective manner.Scholars have also conducted extensive research and Discussion on how to determine and follow the rules,and put forward different opinions,but they have not reached a unified point of view.The problem is still not effectively solved.In my opinion,we must first base on the particularity of the administrative public interest litigation system itself and determine the relevant factors that need to be considered.Specifically,the legal status of procuratorial organs and their ability to prove evidence,pre-litigation procedure and proof convenience should be considered comprehensively in order to scientifically and reasonably distribute.Secondly,we should draw lessons into two categories: as cases and as cases,and implement different burden of proof.Finally,it should be allocated according to the following rules: first,in administrative public interest litigation cases,the administrative organs should bear the burden of proof for their administrative acts,while the procuratorial organs should have a correlation between the administrative acts and the infringement of public interest,and have fulfilled it to the administrative organs themselves.However,the administrative organs refuse to correct the illegal acts,which result in the infringement of public welfare and other two categories of matters bear the burden of proof.Secondly,in the cases the administrative organ should bear the burden of proof on the legal basis or objective reasons for its failure to perform its statutory duties according to law,while the procuratorial organ should bear the burden of proof on the following three categories of matters:(1)the administrative organ has the statutory supervisory responsibility but has not fulfilled its duties according to law;(2)There is a correlation between the failure of the administrative organs to perform their duties and the infringement of public interests;(3)they have already fulfilled the pre-litigation procedure to the administrative organs,but the administrative organs still fail to perform their duties,resulting in the infringement of public interests.In addition,it is necessary to further improve the corresponding supporting measures,such as improving the public interest damage identification mechanism,strengthening the rigid safeguard mechanism of the procuratorial organs' investigation and verification power,so as to effectively guarantee the litigants to fulfill their burden of proof,and better realize the litigation objectives of supervising administrative organs and protecting public interests in administrative public interest litigation.Institutional value.