环境行政公益诉讼举证责任分配之反思与修构

Reflection and Reconstruction of the Distribution of Burden of Proof in Environmental Administrative Public Interest Litigation

环境行政公益诉讼打破了行政诉讼中“两造恒定”的传统模式,逐渐成为保护环境体系中的重要组成部分。但与此同时,面临举证责任分配方式与传统行政诉讼理念相背离,被诉行政行为无法简单根据“作为”或“不作为”进行二元划分,以及其中泛在的举证责任竞合问题。环境行政公益诉讼作为行政诉讼的重要组成部分,其举证责任分配方式不便重构,而应在现有行政诉讼框架下进行解构与补充。具体而言,应当区分推进责任与说服责任,确立行为导向与结果导向的二元化履职判断标准,并在实体法中对环境行政公益诉讼举证责任分配基准进行补充,以弥合统一规定所存在的漏洞与不公。

Environmental administrative public interest litigation has broken the traditional mode of "unchangeable plaintiff and defendant" in administrative litigation and gradually become an important part of the environmental protection system.Meanwhile, the distribution of burden of proof deviates from the traditional administrative litigation concept, the administrative act being sued cannot be divided into two parts simply according to "act" or "omission",and there are many problems of concurrence of the burden of proof.As an important part of administrative litigation, environmental administrative public interest litigation is not liable to reconstruct its distribution of burden of proof, and it should be deconstructed and supplemented under the current framework of administrative litigation.To be specific, it is necessary to distinguish between the burden of producing evidence and that of persuasion, establish a dualistic judgment standard of performance of duties based on act orientation and result orientation, and supplement the distribution of burden of proof for environmental administrative public interest litigation in the substantive law so as to close the loopholes and injustices existing in the unified regulations.