论我国国家赔偿的举证责任分配

On the Allocation of the Burden of Proof in China's State Compensation

修订后的《国家赔偿法》确立了赔偿请求人与赔偿义务机关各自的举证责任,是我国国家赔偿制度的一大进步。但从该法保障赔偿请求人依法取得国家赔偿权利的立法宗旨来看,我国国家赔偿举证责任分配仍存在诸多问题,需要从确立国家赔偿举证责任的风险分配规定、课予赔偿义务机关对违法性要件的举证责任、扩大赔偿义务机关在侵犯人身权情形下的举证范围、减轻赔偿请求人在程序违法情形下的举证责任等方面予以完善。

China＇s State Compensation Law is amended to clarify the respective burden of proof of the claimant and the organization with compensatory obligations, which can be taken as a big progress in China＇ s state compensation system. In terms of the principle of legislation that ensures the claimant the acquisition of state compensation rights in accordance with the law, many problems still exist in the allocation of the burden of proof in China＇s state compensation. Therefore, the further improvement is suggested to be made from the following aspects, such as establishing the rules of risk allocation in the burden of proof of state compensation, entitling organization with compensatory obligations to the burden of proof in the main cases against the law, enlarging the the scope of burden of proof of the organization with compensatory obligations when the personal rights are violated, reducing the burden of proof of the claimant when the procedure is against the law and so on.