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

In July 2017,the administrative public interest litigation system was formally incorporated into the newly revised Administrative Litigation Law.According to this provision,it is clear that procuratorial organs are the only eligible subject to bring administrative public interest litigation.The preliminary establishment of administrative public interest litigation system lacks relevant supporting measures and legal provisions,which leads to many problems in the actual operation of the system,among which,the problem of how to allocate the burden of proof between administrative organs and procuratorial organs is the first one.In view of the current judicial practice,there are mainly some problems,such as the unclear distribution of burden of proof between administrative organs and procuratorial organs,the passive response to lawsuits and the inertia of performing the burden of proof,and the excessive burden of proof borne by procuratorial organs.Based on the administrative public interest litigation of burden of proof allocation related theory as the starting point,in the civil law theory as the foundation of distribution of evidential burden,analyzing factors can affect the administrative public interest litigation of burden of proof allocation,and combining with legal regulations and judicial practice in our country case puts forward the administrative public interest litigation should follow three principles,namely,fair share the principle,economic and efficient principle,as the evidence and dispose principle,and put forward the design idea of administrative public welfare lawsuit system of distribution of evidential burden.In addition to the introduction,this paper consists of four parts.The first part is the basic connotation of the burden of proof distribution of administrative public interest litigation.This part analyzes the concept and characteristics of administrative public interest litigation,the principle of the burden of proof distribution of administrative public interest litigation and the theoretical debate of administrative public interest litigation.This part has three dimensions: objective burden of proof,subjective burden of proof and the definition of burden of proof in administrative public interest litigation in China.The objective burden of proof and the subjective burden of proof as the common rules of the burden of proof should be the concept of the part,and because of the special subject and special institutional value of the burden of proof in administrative public interest litigation,its uniqueness should be included in the scope of consideration,as a special module analysis of the framework of the burden of proof.And the principles of administrative public welfare lawsuit burden distribution pattern of distribution of evidential burden is the top floor of the building,the rule of law principle to provide policy guidance,the proportion principle to make administrative act rationality to the facts,value principle in practice can work independently,unique fairness principle requires attention to the special features of the administrative public interest litigation,and substantial justice principle value to respect the reasonable difference of administrative public interest litigation.In the current theoretical circle,there are still disputes about the distribution theory of burden of proof in administrative public interest litigation.Some scholars believe that the traditional equitable distribution theory of "the one who claims the case provides the evidence" should be followed.However,in view of the professional nature of administrative acts,procuratorates are often faced with difficulties in probing into the situation,resulting in difficulties in providing evidence.As a common rule of administrative litigation,the theory of "inverted burden of proof" encourages the arbitrariness of procuratorates to a certain extent.The theory that administrative organs bear more responsibility ignores the stage attribute of administrative public interest litigation.Procuratorates assume the initial burden of proof,so the administrative organs are not exempt from the burden of administrative public interest litigation time stage attention is not clear.The second part analyzes and summarizes the current situation of the burden of proof distribution system of administrative public interest litigation.In the pilot,the characteristics of administrative public interest litigation are as follows: high settlement rate of pre-litigation procedure,high victory rate of procuratorate,new types of litigation,and complicated pre-litigation procedure of procuratorate,etc.After the promulgation of "One Decision and Three Interpretation",administrative public interest litigation officially has a direct legal basis.However,as far as public interest litigation is concerned,the legal equipment is still not perfect and there is no systematization.The position of public interest litigation itself in administrative litigation seems to explain that the burden of proof of public interest litigation is also the next concept of the burden of proof of administrative litigation.In the practice of judicial operation,the distribution of burden of proof in administrative public interest litigation is gradually independent from the form of burden of proof in administrative litigation,and tends to be unified.Based on the guidance of typical cases,it can be concluded that procuratorates generally assume almost complete burden of proof,administrative organs generally only do procedural defense,and procuratorial suggestions actually assume the function of proof.The third part is about the problems existing in the distribution system of the burden of proof in administrative public interest litigation.From the perspective of legislative configuration,it is obvious that the law of allocation of burden of proof in administrative public interest litigation in China is absent,which causes the problem of insufficient supply and lack of uniform applicable standards.As administrative public interest litigation itself is located in the chapter of the litigants of administrative litigation,its structure is unreasonable,leading to the independence rule facing the burden of proof of administrative public interest litigation is facing a theoretical dilemma.In practice,the distribution of burden of proof is also unbalanced.The procuratorate often bears too much burden of proof and almost all the burden of proof in the aspect of entity,which,to a certain extent,inhibits the scope of accepting cases of administrative public interest litigation and weakens the supervision efficiency of the procuratorate.Before litigation procedure of the burden of proof and the lack of before litigation procedure should enter the procedure of unified standards,and the standardization of the procuratorial advice nor as proof object is easy to induce institutional crisis without the context of compulsory investigation power’s procuratorate proof ability as well as factor into the burden of pattern construction.The lack of objective burden of proof leads to the lack of severity of the system.Therefore,the application of objective burden of proof should be included in administrative public interest litigation to avoid litigation delay,litigation raid and exploration of proof,which is conducive to the realization of the legislative purpose of the period of proof production,the standardization of litigation means and the promotion of litigation efficiency.Whether the applicable standard should be applied to the second trial or the retrial when the national or social public interests are damaged is also a problem that needs to be answered by the system.The fourth part is the solution to the problem of distribution system of burden of proof of administrative public interest litigation in China.First,the construction of the preliminary burden of proof is clear.The procuratorate undertakes the preliminary burden of proof,and the administrative organ does not exempt from the obligation.The court also has different degrees of obligation according to the stages of administrative public interest litigation.Secondly,the allocation of the burden of proof in litigation should be clarified,and the proportion of the burden of proof should be balanced according to the phased liberation of the procuratorate’s ability to investigate and collect evidence.We should respect the uniqueness of public interest litigation,start from the principle of fairness,and attach importance to the special status of procuratorates.Third,establish the distribution mode of the burden of proof of administrative public interest litigation in the second instance,clarify the principle of limited scope of review in the second instance,"overdue evidence" in principle lose the ability of evidence.Fourthly,a professional appraisal system should be built,which should be incorporated into the appraisal system of administrative public interest litigation and the expert assistant system of administrative public interest litigation.A professional evaluation mechanism should be established comprehensively,and the professional level of both parties should be standardized while strengthening the ability to provide evidence,so as to accurately target public welfare repair.The issues of public welfare recovery and legal supervision will be classified and treated and dealt with in a special way.Fifthly,the distribution system of burden of proof should be constructed from the perspective of trial center,the advantages of centralized trial and continuous trial should be brought into play,the smooth connection between pre-trial procedure and litigation procedure should be emphasized,and the trial itself should have continuity and the functional advantages of the system should be brought into play.