On The Distribution Of Burden Of Proof In Administrative Public Interest Litigation

In recent years,with the rapid development of China's economy,while focusing on construction,the administrative organs will relax their work in some aspects,which will lead to administrative inaction and even make illegal acts eager to promote the results of economic construction,such as the administrative organs in the ecological environment,resource protection,the transfer of the right to use state-owned land and the protection of state-owned assets.Illegal acts or omissions in other areas.In order to solve the current situation of various public welfare incidents,the state has also issued a number of legal documents,the procuratorial organs for the main body,the pre-litigation procedure,the burden of proof in the process of litigation and the final cost-bearing subject.However,in the distribution of burden of proof,the revised Administrative Procedure Law in 2017 does not make any legal provisions on burden of proof in administrative public interest litigation different from that in administrative litigation.Does this mean that when administrative public interest litigation is carried out,the procuratorial organs and administrative organs should apply the original rules of inversion of burden of proof?At present,there are three opinions on how to distribute the burden of proof in administrative public interest litigation:first,we should continue to use the inversion of the burden of proof as the distribution rule of the burden of proof stipulated in the Administrative Procedure Law;second,we should follow the rule of "who advocates who provides proof';third,although the procuratorial organ has more methods than the plaintiff in the traditional administrative litigation.In the aspect of investigation and evidence collection,experience can not relieve the administrative organ from the burden of proof as the subject of obligation.On the contrary,the People's Procuratorate has more perfect defense ability than the plaintiff,and its burden of proof should be increased in order to enable the administrative organ to better prove the legality of its actions.Therefore,we should continue to use the "inversion of burden of proo" as the distribution rule,but this inversion is not the real sense of the responsibility inversion,the party who assumes the responsibility is often the party who puts forward the claim.Among the provisions on the distribution of burden of proof,the materials that should be submitted by the procuratorial organs when instituting administrative public interest litigation specified in Article 22 of the "Interpretation of Several Questions Concerning the Application of Law in Procuratorial Public Interest Litigation Cases" indicate that certain burden of proof has been allocated to the procuratorial organs at the time of legislation,and the second paragraph "The defendant illegally exercises his powers or fails to act,resulting in national interests or societies."The burden of proof is to bear the burden of proof of the fact that the public interest will be infringed.The fact that the procuratorial organ has illegality of the act or omission before putting forward the procuratorial suggestion should be explained by proof.Although the main body of burden of proof of the facts directly to be proved is not stipulated in the Administrative Procedure Law and the Interpretation of Several Questions Concerning the Application of Law in Public Interest Litigation Cases of Procuratorates,the first provision of Article 45 of the Implementation Measures for the Pilot Work of Public Interest Litigation by the People's Procuratorate,adopted on December 16,2015,and Article 49 of the Administrative Procedure Law and Article 5 of the Interpretation of the Administrative Procedure Law are stipulated.The internal spirit stipulated in Article 4 is the same;the second is essentially the same as Article 21 of the Interpretation.Although the form is not the same,the facts of the direct receipt certificate of administrative litigation and administrative public interest litigation are the same,and they all arise from litigation claims.It is emphasized that the procuratorial organs should also enjoy the rights conferred by law to ensure that they can bear the burden of proof,and improve the right of people's procuratorates to investigate and collect evidence according to law.At the same time,in order to enable the administrative public interest litigation to proceed comprehensively and fairly and orderly as scheduled,for the purpose of protecting the national interests and the legitimate rights and interests of the public,the people's court should also be given the necessary right to investigate and obtain evidence,because the content of the right to investigate and obtain evidence of the people's court stipulated in the Administrative Procedure Law can not be applied to the pre-litigation procedure,so the system should be tried.Suggestions on the Protection of Pre-litigation Procedure.