Administrative Litigation Vision (VI) | Administrative Litigation Evidence

Published:

2022-06-10

Foreword Determined by the nature of administrative litigation, the ultimate fact that the evidence of administrative litigation is to prove is the legality of the accused administrative act. Under normal circumstances, the defendant bears the legal burden of proof to prove the legality of the accused administrative act. Throughout the proceedings, the defendant and his agent shall not collect evidence from the witnesses and the plaintiff on their own. The plaintiff may also request the people's court to collect evidence if it is difficult to collect evidence. 1 Types and Characteristics of Evidence in Administrative Litigation Administrative litigation evidence is all the facts that can prove the true situation of administrative cases. According to Article 33 of the the People's Republic of China Administrative Procedure Law (hereinafter referred to as the "Administrative Procedure Law"), administrative litigation evidence includes the following categories: (I) documentary evidence. It is an instrument recorded or expressed in words or symbols to prove the facts to be proved. (II) physical evidence. Refers to an article that uses the appearance, characteristics, quality, etc. of the article to explain part or all of the facts to be proved. (III) audiovisual materials. It refers to the factual materials related to the case recorded by means of audio or video recording. Audio tapes, videotapes and other items belong to the carrier, and the contents of their records belong to the audio-visual materials in the evidence. The audiovisual materials may be provided by the parties concerned, and the people's court may also, on its own initiative, request or copy them from the units or individuals concerned. (IV) witness testimony. Refers to the statement of the facts of the case made by the witness to the people's court orally or in writing. Except for those who are mentally or physically defective and cannot correctly express their will and the litigation agent of the case cannot be a witness in the case, any citizen and organization has the obligation to testify. Witnesses should generally appear in court in person to testify. If there are special circumstances that cannot appear in court, they may testify in the form of written testimony with the permission of the people's court. (V) the parties' statements. It refers to the statement of the facts of the case and the circumstances proving these facts submitted to the people's court by the person directly interested in the case. The statement of the parties is an important clue to find out the facts of the case, but the parties may adapt the objective facts for their own interests, so the people's court should conduct a comprehensive review in combination with other evidence in the case. (VI) identification conclusion. It refers to the technical conclusions made by appraisers with professional and technical expertise on special issues related to the case by using special instruments and equipment. Including medical identification, document identification, technical identification, accounting identification, chemical identification, physical identification, etc. (VII) inspection records and on-site records. The record of inspection refers to the records made by the staff of the administrative organ or the judicial personnel of the people's court for the investigation, inspection, measurement, drawing and photographing of the scene or articles related to the administrative case. On-site transcripts refer to the written records made by the staff of administrative agencies on the on-site conditions related to administrative cases and their handling in the course of administrative management. Evidence in administrative litigation should have three characteristics, namely, objective authenticity, relevance and legitimacy. Objective authenticity means that litigation evidence must be an objective fact that can prove the truth of the case and does not depend on subjective consciousness. Relevance means that the fact as evidence is not only an objective existence, but also has a logical connection with the facts to be found out in the case, so as to explain the facts of the case. Legitimacy means that the evidence must be provided by the parties in accordance with legal procedures, or by statutory authorities, statutory personnel in accordance with the statutory procedures for investigation, collection and review. Evidence that does not meet the above requirements cannot be used as the basis for the court to determine the facts to hear the case. Regardless of the form of the above seven kinds of evidence, the people's court examines its authenticity and legality, and at the same time examines the interrelation between the various kinds of evidence and the relationship with the facts to be proved. Burden of Proof in 2. Administrative Litigation The system of burden of proof is an important part of administrative litigation, and its specific meaning is that the parties who claim the existence of facts in litigation should bear the burden of proof, that is, "who claims, who gives evidence". In order to balance the unequal status of the parties in administrative litigation, the rule of the allocation of the burden of proof in administrative litigation in our country is that the defendant bears the burden of proof in principle, and in exceptional cases, the plaintiff bears the burden of proof, or the court investigates the evidence. (I) the defendant bear the burden of proof Article 34 of the Administrative Procedure Law stipulates: "The defendant shall bear the burden of proof for the administrative act he has committed, and shall provide the evidence for the administrative act and the normative documents on which it is based. If the defendant fails to provide or fails to provide evidence without justifiable reasons, it shall be deemed that there is no corresponding evidence." Therefore, the defendant, that is, the administrative organ, should bear the corresponding burden of proof to prove the legitimacy of its administrative act. "If the defendant fails to provide evidence or fails to provide evidence within the time limit without justifiable reasons, it is deemed that there is no corresponding evidence", which is mainly applicable to the profit and loss administrative act made by the administrative organ against the administrative counterpart, because according to the principle of obtaining evidence before ruling, the administrative organ must have collected sufficient and conclusive evidence when making a profit and loss administrative act, and the administrative organ fails to provide evidence or fails to provide evidence within the time limit without justifiable reasons in litigation, it is difficult for the people's court to support the administrative act. However, when the administrative action involves the legitimate rights and interests of the third party, the simple application of this rule is to transfer the adverse consequences to the third party. This shows that the evidence of administrative litigation should not only be provided by administrative organs, and all legal evidence that can prove the facts of the case can become the basis for the final decision of administrative litigation. In the course of litigation, subject to the rule of "obtaining evidence first, ruling later", the evidence provided by the defendant to prove the legality of the administrative act can only be limited to the evidence that he has already collected when he made the administrative act. If the accused administrative act is made in the absence of evidence or insufficient evidence, the administrative act has been illegal. (II) the plaintiff bear the burden of proof Although the defendant bears the burden of proof for the legality of the administrative act, this principle of distribution of proof does not mean that all the facts to be proved in the administrative litigation shall be proved by the defendant. The plaintiff shall prove whether the conditions for prosecution are met, whether the accused administrative act exists and is implemented, the facts that have been applied for when prosecuting inaction, and the damage suffered in the case of administrative compensation. 1. Eligible for prosecution. Article 4 of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" (hereinafter referred to as the "Provisions on Evidence") stipulates: "When citizens, legal persons or other organizations file a lawsuit in the people's court, they shall provide corresponding evidence materials that meet the conditions for the lawsuit." Whether the conditions for prosecution are met shall be provided by the citizen, legal person or other organization, that is, it is necessary to prove that it is the counterpart of the administrative act or a person who has an interest in the administrative act, otherwise the people's court will rule not to file the case or dismiss the prosecution after filing the case. 2. The existence and implementation of administrative acts. When the defendant has the burden of proof for the administrative act, he should provide the evidence and the normative documents on which the administrative act is based. It does not mean that the defendant needs to bear the burden of proof for all the facts of the accused administrative act. When the accused administrative act is an act, according to the above-mentioned legal provisions on the burden of proof, the defendant needs to prove that the administrative act he made has factual and legal basis and is a legal administrative act, as to whether the administrative act has been made and who is the subject of the administrative act, it should be proved by the plaintiff. Otherwise, it will make it difficult for the defendant who claims negative facts to fulfill the corresponding burden of proof in the trial of the case. In the case of (2016) Supreme Law Application No. 2907, the Supreme Court held that the plaintiff should obviously prove whether the alleged administrative act exists and whether the administrative act was carried out by the defendant. This is the factual basis for the plaintiff to accuse the administrative organ of having committed an administrative act that infringes its legitimate rights and interests, and also the substantive reason for the establishment of the litigation request, it is not to shift the burden of proof of the illegal administrative act to the plaintiff. 3. The fact that an application has been filed. When the accused administrative act is a failure to perform statutory duties or an omission as an administrative act, the plaintiff should generally prove that it has applied to the defendant, unless there are special provisions. The first paragraph of Article 38 of the Administrative Litigation Law stipulates: "In a case where the defendant is sued for failing to perform his statutory duties, the plaintiff shall provide evidence of his application to the defendant. However, one of the following circumstances is excluded; (I) the defendant should take the initiative to perform his statutory duties ex officio; (II) the plaintiff is unable to provide evidence for legitimate reasons." Therefore, the plaintiff's burden of proof for the performance of the application is not absolute. In the above two cases, even if the plaintiff fails to provide evidence, it will not bear the adverse consequences of the inability to provide evidence. 4. Administrative compensation and compensation cases. According to the second paragraph of Article 38 of the Administrative Litigation Law: "In a case of administrative compensation or compensation, the plaintiff shall provide evidence of the damage caused by the administrative act. If the plaintiff is unable to provide evidence due to the defendant's reasons, the defendant shall bear the burden of proof." The first paragraph of Article 47 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Procedure Law (hereinafter referred to as the "Application Interpretation") stipulates: "According to the provisions of the second paragraph of Article 38 of the Administrative Procedure Law, in administrative compensation In a case of compensation, if the plaintiff is unable to prove the damage due to the defendant's reasons, the defendant shall bear the burden of proof for the damage." Article 5 of the "Evidence Regulations" stipulates: "In administrative compensation litigation, the plaintiff shall provide evidence of the fact that the specific administrative act being sued has caused damage." According to the above-mentioned provisions, for the fact and amount of damage caused by administrative acts, in principle, follow the rule of proof of who claims who gives evidence, and the plaintiff gives evidence. However, this rule of proof is also not absolute and there are exceptions. In the case of (2016) Supreme Law Administration No. 791, the plaintiff was unable to prove the specific loss due to the defendant's reasons. The Supreme Court held that when Huashan District government organized the demolition of the applicant's house, it failed to register and preserve the articles in the house according to law, and failed to make a list of articles and submit it to the applicant for signature confirmation. As a result, the applicant could not prove the damage to the articles, so whether the loss existed and the specific loss, according to law, the respondent Huashan district government shall bear the burden of proof. In the case that the Huashan District government failed to provide sufficient evidence, the court of second instance, referring to the reasonable market price and in accordance with the principle of "high is not low", supported the applicant's reasonable claim for compensation for indoor goods, which has fully protected the applicant's rights. However, in the administrative compensation litigation, if the plaintiff is unable to provide evidence due to the defendant's reasons, the plaintiff is not automatically exempted from the burden of proof to prove the existence of the loss and the scope of the loss. In the case of (2017) Supreme Law Xing Shen No. 26, if the Supreme Court considers that the plaintiff's proof of the loss is obviously unreasonable, the people's court may determine the corresponding amount of compensation in accordance with the law in the light of the objective facts found after the trial. Although in principle, the defendant bears the burden of proof in administrative litigation, this does not mean that the plaintiff cannot prove the facts of his claim, but that the plaintiff does not bear the consequences of the inability to prove, nor does it of course exempt the defendant from the burden of proof. Article 37 of the Administrative Procedure Law stipulates: "The plaintiff may provide evidence to prove that the administrative act is illegal. If the evidence provided by the plaintiff is not tenable, the defendant shall not be relieved of the burden of proof." In addition, according to Article 46 of the applicable interpretation, if the plaintiff or a third party does have evidence to prove that the evidence held by the defendant is beneficial to the plaintiff or the third party, it may apply in writing to the people's court to order the administrative organ to submit it before the hearing. If the reasons for the application are established, the people's court shall order the administrative organ to submit it. If the administrative organ refuses to submit it without justifiable reasons, the people's court may presume that the facts claimed by the plaintiff or a third party based on the evidence are established. In such a case, even if the plaintiff or a third party does not prove the facts claimed by him, the court still presumes that the facts claimed by him are established and the defendant bears the adverse consequences. (III) people's court to conduct investigation and collect evidence Although the burden of proof and the consequences of the failure of proof shall be borne by the original defendant, under certain circumstances, the people's court may, ex officio, require the parties to provide evidence, collect evidence on their own, or obtain evidence on the application of the plaintiff or a third party. 1. Ex officio. In order to protect the legitimate rights and interests of the State, society and others, the people's court may require the parties to provide and supplement evidence. Article 39 of the Administrative Procedure Law stipulates: "The people's court has the right to require the parties to provide or supplement evidence." Article 37 of the applicable interpretation further explains: "according to the provisions of Article 39 of the administrative procedure law, the people's court may order the parties to provide or supplement relevant evidence if there is no dispute over the parties, but the facts involve the national interests, public interests or the legitimate rights and interests of others." At the same time, the court has the right to investigate and collect evidence on its own. Article 40 of the Administrative Litigation Law stipulates: "The people's court shall have the right to obtain evidence from the relevant administrative organs, other organizations and citizens. However, it shall not obtain, for the purpose of proving the legality of an administrative act, evidence that was not collected when the defendant took the administrative act." Article 22 of the "Evidence Regulations": "According to the second paragraph of Article 34 of the Administrative Litigation Law, the people's court has the right to obtain evidence from relevant administrative agencies, other organizations, and citizens under any of the following circumstances: (1) The determination of facts involving national interests, public interests, or the legitimate rights and interests of others; (II) involving procedural matters such as adding parties ex officio, suspending litigation, terminating litigation, and withdrawal." It can be seen that the court is also bound by the rule of "taking evidence first, ruling later" in the process of obtaining evidence. This provision is not only a requirement of doctorism, but also a requirement of the principle of neutrality. (2017) In the Supreme Law Application No. 2926 case, the Supreme Court held that the court could neither accept the evidence that the defendant did not collect when he made the administrative act, nor obtain the evidence that the defendant did not collect when he made the administrative act in order to prove the legality of the administrative act. 2. Upon request. Article 41 of the Administrative Litigation Law: "If the plaintiff or a third party cannot collect the following evidence related to this case on its own, it may apply to the people's court for access: (1) Evidence kept by state agencies and must be obtained by the people's court; (II) evidence involving state secrets, trade secrets, and personal privacy; (III) other evidence that cannot be collected by itself due to objective reasons." In civil proceedings, if the plaintiff and the defendant are unable to collect evidence on their own for objective reasons, they may apply to the court to obtain evidence. In administrative litigation, the defendant, as an administrative organ, has a higher ability to obtain evidence than the plaintiff and the third party, so the law stipulates that only the plaintiff and the third party have the right to apply to the court for investigation and evidence collection. 3. epilogue Compared with civil litigation, the rule of proof in administrative litigation has its particularity, based on the fact that the status of the plaintiff and the defendant is not equal, it is necessary to ensure the equality of the litigant's litigation status through the distribution of the burden of proof, so the traditional rule of proof of "who claims, who gives evidence" is not fully applicable to administrative litigation. In judicial practice, courts often allocate the burden of proof reasonably on the basis of legal provisions according to the ability of both parties to prove the case, combined with the facts of the case.

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