The Burden Of Proof And The Standard Of Proof On"The Absence Of Government Information"

The promulgation and implementation of the "Regulations on the Openness of Government Information" is of particular importance to the construction of an open and transparent government under the rule of law in China.However,in the practice of government information disclosure,the administrative organ has a higher proportion of “the absence of government information”,which makes it difficult for relatives to obtain specific government information in a timely and sufficient manner.The more serious problem is that in the case of "the absence of government information",the people's courts have problems such as the definition of "the absence of government information",the distribution of burden of proof,and unclearness,inconsistency,and non-strictness in the recognition and application of the standard.The lack of judicial review of the “the absence of government information” case will,to a certain extent,further motivate the administrative organ to respond administrative counterpart “the absence of government information”.The solution to the problem is to clearly define the distribution responsibility rules and certification standards for the case of “the absence of government information” on the basis of clearly defining the concept of “the absence of government information”,and further strengthen and implement the guiding and restricting functions of the certification standards for judicial review of the people's courts.“The absence of government information” refers to a state in which an administrative organ cannot provide a relative government with the specific government information it applies when making a public reply to the government information.Regardless of whether the government information applied by the relative has ever existed,and whether the government information does exist objectively,as long as the administrative agency exhausts the means to find that the government information cannot be provided,it is regarded as “the absence of government information”.The facts of the case that " the absence of government information " shall be borne by the defendant's administrative organ in accordance with the law,because " the absence of government information " is not a special case in which the plaintiff assumes the burden of proof as stipulated in China's administrative procedure law and judicial interpretation.The negative objective factual attribute of “the absence of government information” does not constitute an obstacle for the defendant to bear the burden of proof.The defendant's administrative organ's obligation to inform and explain the reasons for “the absence of government information” does not exclude its burden of proof on “the absence of government information”.It may even say that the reason for “the absence of government information” is itself a proof process.Administrative Counterpart provides clues to the government information that is applied for disclosure is not the burden of proof,but the right to provide relevant evidence,it is only necessary to increase the difficulty of the accused administrative organ to complete the burden of proof.In the case of “the absence of government information”,In addition to the high-level proof of proof in the case where the administrative organ “cannot inquire about the production and preservation of government information”,clear and persuasive standards apply in all other cases.In the practice of judicial review,the people's courts should clearly distinguish and strictly grasp the uniform application of these two certification standards,so as to strengthen the review of “the absence of government information”,protect the legitimate rights and interests of relatives,and Promote the construction of an open and transparent government under the rule of law.