Study On Transfer Of Burden Of Proof In Lawsuits Claiming For Administrative Compensation For Forced Demolition

In recent years,with the acceleration of economic and social development,and urbanization,administrative forced demolition and removal of illegal constructions have been common to see,thus leading to a surge of the number of administrative compensation cases and drawing extensive attention from all sectors of life,particularly the academic circles.In lawsuits claiming for administrative compensation,the burden of proof comes first in the administrative litigation evidence system,which is set up to promote the proceeding procedures through the distribution of the burden of proof among related parties.In this way,related parties can immediately provide adequate evidence to ensure the judge's inner conviction to get closer to objective facts.Based on that,the judge can decide on the case better to realize fairness on the legal sense.According to stipulations of the Law of the People's Republic of China on Administrative Procedures and the Law of the People's Republic of China on State Compensation,the plaintiff should undertake the burden of proof for the losses resulted from the forced demolition behaviors of administrative organs.But in judicial practices,since the illegal administrative enforcement behaviors of the administrative subjects go against the legal procedures or legal procedures,it is impossible for the administrative counterpart to collect and retain evidences to prove his or her own claims or his or her evidence lacks the probative force to satisfy the judge's free evaluation of evidence.Consequently,the dilemma that the administrative counterpart cannot get reasonable compensation though his or her administrative behavior is confirmed to be illegal.Therefore,Subparagraph 2,a newly-increased clause in Article 38 of the Law of the People's Republic of China on Administrative Procedures that was amended in 2014,stipulates,“If the inability of the plaintiff to provide such evidence is caused by the defendant,the defendant shall have the burden of proof.” This clause can,to some extent,address the difficulty with the burden of proof resulted from the administrative organ's illegal demolition behaviors.In judicial practices,the court abstractly use the concept of “preliminary proof” as the prerequisite for the transfer of the burden of proof,but there are no further explanations for its specific application,which has thus resulted in the disagreement of judicial practices,such as the nature of the sharing form of the burden of proof,detailing of preliminary proof liabilities and proof standards for the plaintiff,real connotation of “on the part of the defendant”,factors affecting the transfer of the burden of proof,specific compensation standards and scope of compensation.Subparagraph 2 of Article 38 of the Law of the People's Republic of China on Administrative Procedures proceeds from the aforesaid problems and centers around the proof of the fact of damage to discuss the transfer of the burden of proof in administrative compensation lawsuits.Chapter 1 mainly summarizes relevant concepts of the core content in this paper,analyzes the connotation of the burden of proof,and the distribution status of the burden of proof in China's current administrative procedures,lists the object of proof of the plaintiff in compensations arising from administrative litigation,and summarizes the history of the burden of proof claiming for compensation for the administrative forced demolition.Chapter 2 combines a large number of judicial cases,summarizes situations where administrative organs' behaviors are determined to be illegal,differentiates the situations where the court thinks the defendant has interferes the proving process,and the prerequisites for the application of the transfer of the burden of proof before the administrative forced demolition and during the administrative forced demolition.Chapter 3 mainly expounds on the mechanism how the defendant's illegal behavior affects the transfer of the burden of proof,and analyzes the theoretical basis for the transfer of the burden of proof to the defendant in lawsuits claiming compensations for administrative forced demolition.First of all,the logical relationship between “the defendant's illegal behaviors” and “on the part of the defendant” is differentiated.Following that,the plaintiff's ability to prove the damage facts is expounded from three aspects.Through definition of the scope of the damage facts,that the plaintiff cannot provide the confirmation of evidence is analyzed,and the preliminary burden of proof to be completed by the defendant is clarified.At last,the causality between the defendant's illegal behaviors and the plaintiff's failure to provide evidence is analyzed.Chapter 4 proposes suggestions for improvement of the transfer of the burden of proof in lawsuits claiming compensation for administrative forced demolition in China.First,the burden of proof should be divided into the burden of proof on the subjective sense and the objective sense,respectively,via the deepening of basic concepts,which can distinguish different proof effects.Second,the preliminary proof standards for the plaintiff after the transfer of the burden of proof are clarified so that the judge and related parties can clarify the degree to which the plaintiff should undertake the preliminary proof.Third,the elements that impede the transfer of the burden of proof are analyzed.After the burden of proof is transferred in the lawsuits claiming compensation for administrative forced demolition,the burden of proof of the objects which are beyond the normal persons' cognition or market value is transferred again.Then,the plaintiff is liable to undertake the burden of proof for the unreasonable value of the object that is damaged.Fourth,the application of compensation standards and compensation scope is clarified to prevent the plaintiff's abuse of its right to transfer the burden of proof,and use the value measurement rules to pursue fairness and justice substantially.