论工伤行政诉讼的举证责任

On the Burden of Proof in Work-related Injury Administrative Litigation

行政诉讼举证责任分配的单一性与工伤行政诉讼的复杂性相冲突,工伤认定是社会保险行政部门依申请对工伤事故的性质进行确认,社会保险行政部门并不是劳动关系的参与者,要求行政部门做出工伤确认时对事实证据全面掌握是不可行的。所以,法院应该考虑行政程序证据与行政诉讼证据的承接性,以保护公民的基本权利为目标,通过对各种因素进行综合考量从而科学地分配举证责任。在工伤案件中,作为申请人的受伤害职工承担初步证明责任,证明与用人单位存在劳动关系和人身受到伤害的事实,但受伤害职工不承担因工而伤的因果关系证明责任;法院对受伤害职工提供的新证据是否采纳,应当根据具体案件的诉讼请求、诉讼地位以及行政程序的具体规定等诸多环节并结合司法解释的有关规则进行综合考量;虽然用人单位相对于行政部门处于弱势地位,但与受伤害职工比较又处于强势地位,用人单位举证不能时可以直接推定工伤。

：The simplification of the burden of proof in administrative litigation and the corn-plication of administrative litigation on work - related injury are not in harmony, the work - relat- ed injury identification is defined as the certification on work - related injury accident through ad- ministrative department of social insurance according to application, it is difficult for the adminis- trative department mastering an overall condition on fact and evidence without the identification as participant of labor relationship. Therefore, the court is obligated to consider the burden of proof scientifically with various aspects, especially the cohesion between the proof in administrative procedure and administrative litigation, with the purpose protecting people＇ s fundamental rights. In work -related injury cases, the injured employee as applicant is responsible for providing the primary evidence, proving the fact of the existence on labor relationship with an exception of pro- ving the cause - result relationship ; taking the specific condition of case combined with the Regu- lations on Evidence into consideration, the court makes the decision whether taking in the new evidence provided by the injured employee; although the employer is weaker than the administra- tive department, superior to the injured, there should be an immediate certification on work - re- lated injury with the inability on proof of the employer