The Judicial Review Of The Transfer Of The Burden Of Proof In Administrative Forced Demolition And Compensation Cases

The deepening of urbanization has led to a large number of administrative compensation cases for forced demolition and demolition of illegal buildings.According to the provisions of China's State Compensation Law,the plaintiff shall bear the burden of proof for the losses caused by the administrative agency's forced demolition.However,in the forced removal,there are often some procedural violations in the administrative organs,such as: before the forced demolition,the mandatory demolition decision is not delivered or the value of the building is not evaluated;in the forced removal process,there is no The list of seized items was produced,the items in the building were not transferred in time,the items in the house were not notarized,and the parties were not notified to attend the scene or the transcripts were not produced and submitted to the parties or witnesses for signature confirmation;after forced removal,they were not properly prepared.Other activities such as the custody of the property of the parties.All of the above acts have caused great difficulties for the evidence of the relative person.Leading to practice often occurs when the party wins the lawsuit but cannot get compensation.The Administrative Litigation Law amended in 2014 added a new paragraph in Article 38.In the administrative compensation and compensation cases,the plaintiff's evidence is difficult due to the defendant's administrative organ,and the defendant's administrative organ bears the burden of proof.The emergence of this clause has solved the problem of the burden of proof of the plaintiff under the illegal demolition of the administrative organs to a certain extent,but in the specific practice,there are still problems,such as the form of burden of proof provided by this clause.Whether the burden of proof is reversed or transferred or only the standard of proof is lowered,which leads to differences in the application of judicial practice;the plaintiff's initial burden of proof also has different certification standards due to the loss of different types of goods.In view of the above problems,the author puts forward the following corresponding perfect countermeasures for the transfer of burden of proof in the administrative forced demolitions compensation in China through the analysis and research of relevant extraterritorial experience: First,the further deepening should be strengthened in the basic concept,and the burden of proof should be divided into the objective burden of proof.And subjective burden of proof to distinguish different proof effects;secondly,to clarify the preliminary proof of the plaintiff's burden after the transfer of the burden of proof,let the judge,the parties clarify the extent to which the plaintiff should bear the initial proof,and let the litigation become More efficient;finally,clarify the logic of the initial proof,let the judges implement according to the corresponding standards,prevent different decisions of similar cases,and promote the unification of judicial review.