Research On The Distribution System Of Burden Of Proof In Administrative Public Interest Litigation In China

In 2015,with the approval of the Standing Committee of the National People’s Congress,the highest level of supervision authority started to make experiments of the advantages of the majority in several districts of China.After two years,supreme authority altered the relevant laws,legalize the experience summed up in practice and really started the lawsuit.The liability for adverse consequences is a very research-oriented matter from the initial oath time,but there is no provision to regulate the matter in the relevant laws.Although the position of Article 22 in the public judicial interpretation of the highest level judicial organ clearly defines the information and factual materials that the prosecution subject should provide,the provisions are too simple,and it is far from enough for the judicial practice.Through the analysis of 100 cases for this kind of lawsuit from July 1,2015 to August 30,2020,It is found that the cases in practice are faced with the following problems: there is no division between the active and the inactive undertaking rules,the lack of specific rules for the responsibility of each part of the public welfare being destroyed,and the responsibility bearing rules of whether the executive organs are responsible after being supervised and promoted are not very clear,as well as some problems in the performance of the administrative organs after the proof supervision.For example,the rules of responsibility distribution are not clear,the procuratorial organs lack of protection of investigation and evidence collection rights,and the judicial appraisal mechanism of public welfare damage is not perfect.Therefore,this article absorb relevant experience and combined with the particularity of the administrative public interest litigation,aiming at the problems:the first is that the rules of bearing responsibility for the negative litigation results of the positive actions and negative non implementation of the functional organs are inconsistent.For the positive actions of the functional organs that do not conform to the legal provisions,the exercising organs should prove their actions legitimate;for the negative actions of the functional organs,the procuratorial organs should bear the responsibility for the possibility of legal negation;the second is to divided the duty reasonably,among them,the degree of positive attack and injury is proved by the procuratorial organ.There is no relationship between the two and the responsibility for not being punished is borne by the organ exercising its functions and powers;the third is to make clear that the administrative organ still fails to comply with the law after being urged for the sake of ensure that the procuratorial organ can gather the materials of connected elements bearing the burden of proof within the validity period,improve the investigation and evidence collection right of the procuratorial organ,and perfect the judicial appraisal institution of public interest damage.In addition,in view of the current theoretical research on administrative public interest litigation ignores the responsibility content of the objective negative risk of law and pays emphasize the duty object of objective negative risk,this paper analyzes the duty object of each element that needs to be clarified,and specifically expounds the factual content that the responsibility subject needs to be clear when undertaking the legal objective negative risk.For example,if the procuratorial organ bears the burden of proof for the administrative organ’s failure to perform its statutory duties,it needs to prove that the administrative organ bears the corresponding supervision responsibility,has the possibility to perform its duty,and the fact that the duty has not been fulfilled or not fully performed,so as to further promote the discriminate system of the duty of certification in political common profit lawsuit.