First, how to allocate the burden of proof in the administrative procedure law.
The burden of proof of the defendant (government):
1. The defendant bears the burden of proof for the legality of the administrative act, and shall provide the evidence of the administrative act and the normative documents on which it is based.
2. "Archivism" principle. That is, when an administrative organ makes an administrative act, it must "obtain evidence first, then make a ruling" and follow the principle of "evidence first". The defendant can only prove that his man-made administrative act is legal according to the evidence in the file collected before the act. Evidence obtained through investigation in the rules of procedure shall not be included in the proceedings.
3. If the defendant delays giving evidence, it shall be deemed as no evidence and shall bear adverse consequences. Where the interests of third parties are involved, interested third parties may provide evidence to the court. If the third party cannot provide it, it may apply, and the court will accept it ex officio.
4. If the original judgment is upheld after reconsideration, the reconsideration organ and the original organ shall bear the burden of proof for the legality of the original act. The act of providing evidence can be carried out by an organ. The reconsideration organ also bears the burden of proof for the legality of the reconsideration procedure.
5. If the plaintiff or the third party does have evidence to prove that the evidence possessed by the defendant is beneficial to the plaintiff or the third party, it may apply in writing to the court to order the administrative organ to submit it before the court session. The court where the grounds for application are established shall order the administrative organ to submit the evidence, and the expenses incurred by submitting the evidence shall be paid in advance by the applicant. If the administrative organ refuses to submit it, the court may infer the facts claimed by the plaintiff or the third party from the evidence.
The burden of proof of the plaintiff:
1. Initial burden of proof: the plaintiff shall provide evidence that meets the statutory conditions for prosecution.
I am a qualified plaintiff. There is a clear defendant. There are specific claims and factual basis. It falls within the jurisdiction of the court.
2. If the defendant is sued for inaction, the plaintiff shall provide the evidence that he has applied for in the administrative procedure. However, the following circumstances are excluded: the defendant shall voluntarily perform his statutory duties according to his functions and powers. The plaintiff failed to provide evidence for justified reasons.
3. In cases of administrative compensation and administrative compensation, the plaintiff shall provide evidence for the fact that the accused administrative act has caused damage, whether it is filed separately or jointly. If the plaintiff cannot provide evidence because of the defendant, the defendant shall bear the burden of proof.
Two, the provisions of the administrative litigation burden of proof inversion
In litigation, it is generally "who advocates, who gives evidence". However, in administrative litigation, the burden of proof is different from civil and criminal litigation.
According to Article 32 of the Administrative Procedure Law, "The defendant bears the burden of proof for a specific administrative act, and shall provide evidence of the specific administrative act and the normative documents on which it is based", which shows that the burden of proof in administrative proceedings is reversed. In short, administrative organs bear the burden of proof in administrative proceedings. The burden of proof borne by the administrative organ is as follows: 1. factual evidence proves the factual basis for the administrative organ to act or not act; Two, the legal basis to prove that the behavior of administrative organs in accordance with the provisions of laws and regulations; Third, the proof of due process, whether the administrative organ implements an act in strict accordance with the procedures prescribed by law. Generally, evidence should be obtained first, and then corresponding administrative actions should be made according to the evidence.
Of course, the fact that the administrative organ bears the burden of proof in administrative proceedings does not mean that the administrative counterpart does not have to bear any burden of proof. The administrative counterpart shall provide corresponding evidence materials that meet the conditions for prosecution; Provide evidence to prove that the specific administrative act being sued is illegal; In administrative compensation litigation, provide evidence for the fact that the defendant's specific administrative act has caused damage.
The particularity of administrative litigation determines the particularity of the distribution of burden of proof in administrative litigation. What it pursues is the unity of the spirit of the rule of law and the protection of the legitimate rights and interests of the parties, which is the embodiment of the progress of the rule of law.
Generally speaking, the burden of proof in administrative litigation is borne by the defendant as the administrative subject, indicating whether the specific administrative act it has done is legal. The plaintiff has no burden of proof and is unilateral. If you can't prove it, you will bear the adverse consequences of the lawsuit. Whether the party who bears the burden of proof can win depends entirely on whether he can provide evidence. Once the unfavorable litigation consequences are caused by the failure to provide evidence, this established state cannot be changed by re-providing evidence or other factors.