论行政行为的举证责任

On Burden of Proof of Administrative Acts

理论界对于举证责任的研究都局限在诉讼领域,其实,行政行为的举证责任也是一个非常重要的问题。不同的行政行为有着不同的举证责任,应当分别研究。在行政立法中不存在举证责任的问题;依职权的行政执法行为由行政主体承担举证责任,依申请的行政执法行为分别由申请人和行政主体为各自的主张承担举证责任;在裁决行政争议的行政司法行为中,说服责任始终由被申请人承担,推进责任由提出主张的人承担;对民事争议的行政裁决,则实行谁主张谁举证的举证规则。

In the theoretic world, the researches of burden of proof are confined to the field of litigation. In reality, the burden of proof of administrative acts is a very important issue. There are different burdens of proof related to different administrative acts which should be studied respectively. There is no burden of proof in administrative legislation. In the administrative acts based on legal duties, the burden of proof falls upon the subject of administrative acts. In the administrative acts based on applications, the burden of proof falls upon both the applicant and the subject of administrative acts. In the administrative judicial acts to resolve administrative disputes, the burden of persuasion falls on the party against whom the application is filed and the burden of presentation of evidence falls on the applicant. And in the administrative resolution of civil disputes, there is the rule of ＂the proof lies upon him who affirms＂.