行政公益诉讼证明责任分配的理论阐释与规则构建

Burden of Proof in Administrative Public Interest Litigation

从主观证明责任视角研究行政公益诉讼证明责任分配,存在着适用主体不明确、争论事项不一致、分配对象不相同、研究视角形式化等问题。证明责任分配之规范说理论起源于民事法领域,具有普遍适用的特点。异于私法制度以权利为核心,行政公益诉讼制度以行政职权为逻辑起点。将行政职权与规范说结合进行重述是构建行政公益诉讼证明责任分配理论的当然选择。行政公益诉讼在程序设置上与传统三大诉讼程序不同,其证明责任分配规则必须要作出适当调整才能适应法定的诉前程序。具体来说,检察机关发出检察建议前行政主管机关已经作出的行政职权形成违法的要件事实,由检察机关在诉讼中负担证明责任。

Laws and their judicial interpretations do not stipulate the distribution of burden of proof in administrative public interest litigation.This problem can be studied from two perspectives:subjective burden of proof and objective burden of proof.In the research on the distribution of burden of proof in administrative public interest litigation from the perspective of subjective burden of proof,there are some problems,such as ambiguity of applicable subjects,inconsistency of debate issues,unconformity of distribution objects and formalization of research perspective.The essence of burden of proof is objective burden of proof.Specifically,it refers to the system in which the court distributes the pre-set adverse consequences of losing a lawsuit among the parties when the truth of the essential facts in the field of substantive law is unclear at the end of the court debate.The norm of burden of proof is the judgment criterion of the court first and then the norm of guiding the parties to provide evidence.The Normative Theoryon the distribution of burden of proof was originated from the domain of the civil law,centering on the formation,exclusion,obstruction and elimination of civil rights,and dividing civil legal norms into basic norms and relative norms,which has the characteristic of universal application.Being different from the system of the private law which regards rights as the core,the system of administrative public interest litigation takes administrative authority as the logical starting point.In order to construct the theory of the distribution of burden of proof in administrative public interest litigation,it is an inevitable choice to make a restatement with the combination of the administrative authority and the Normative Theory.In its setting,administrative public interest litigation differs from the three traditional litigation procedures,so the rules concerning the distribution of burden of proof must be readjusted so as to be adapted to the legal pre-litigation procedures.Specifically speaking,the procuratorial organ should bear the burden of proof in litigation,by proving that the administrative authorities have made illegal administrative functions before they issue procuratorial recommendations.