"The obvious superiority evidence principle"In theThe use of administrative litigation

   Our country criminal, civil and administrative litigation law three requires the identification of the facts of the case to the facts are clear, the evidence is, well, but not required proof standard "in the provisions on". The author thinks, this provision is only that action to achieve that goal, is the pursuit of objective truth, rather than a process. Now, a consensus is: the trial process is the pursuit of objective truth, but whether to accord with the objective reality is not a decision is correct or not standard. The property of three kinds of action results of different severity of the losing party should undertake the legal liability, the standard of proof of the three litigation can not and should not be the same; and as one of China's three major litigation administrative proceedings in the case of the parties, the scope of the review, and criminal litigation, civil litigation very different from the standard of proof, also should have its own characteristics.

    "Administrative procedure law of the people's Republic of China promulgated and implemented early, administrative litigation cases with the procedural rules of their own, but these rules are only steps of thick lines, not like a criminal, civil, formed its own unique concept of litigation, especially in the review of the evidence rules, is still in the fuzzy state. With the development of the judicial practice, the Supreme People's court has formulated the "on the implementation of the administrative litigation law '' of the people's Republic of China (for Trial Implementation)", "opinions on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues", in the lawsuit evidence submission, analysis, adopt to the effect of administrative trial. In June 4, 2002, the Supreme People's court and the "Regulations" of the Supreme People's Court on several issues of administrative procedure evidence, and come into force on October 1, 2002. Although the provisions of administrative litigation evidence made a more detailed provisions, but did not prove standards clearly defined. Because of the wide diversity and management affairs of administrative activities, determines the mode property differences between the behavior of the administrative cases involving large, legitimacy of the court in the review of the specific administrative act, not simply by single standard. In practice, the legal standard of proof is difficult to grasp the various elements of the specific administrative act, differences.

    Standard of proof in administrative litigation  

The standard of proof is the fundamental question in evidence law, also known as proof requirements, demonstrate that the task, degree of proof, refers to the subject of proof in order to achieve the aims of proof, should achieve in the quality and quantity of evidence on the extent of the object of proof, the scope and the degree of definition. The standard of proof in administrative litigation, refers to the administrative cases according to the provisions of the administrative procedure rules, the parties to fulfill the burden of proof to prove the facts of the case, should reach the degree, including the administrative litigation evidence should reach the requirements of quality and quantity. The people's court to ascertain the facts, evidence of judge is submitted by the parties according to certain rules to judge, then according to the admissible evidence deduce a fact, the fact that the legal fact. Evidence from big aspect including the allocation of the burden of proof, the burden of proof during, scope, the evidence form, the exclusion of illegal evidence, evidence, the burden of proof is the negation of the conversion. Comprehensive analysis, the judge according to the rules of administrative dispute with different corresponding use various kinds of evidence provided by the parties, showing the "objective fact real", whether the referee fair manifests is scientific, rational use of the rules of evidence, procedure is correct.

    To understand from the perspective, the standard of proof in administrative litigation is first of all parties in administrative litigation of burden of proof to prove its performance, claims established standards, it is closely related with the subject, the burden of proof in administrative litigation, claims and litigation consequences. To understand from the judicial personnel point of view, the standard of proof in administrative litigation is the judge standard of administrative litigation parties believe that the facts of the case. Whether the parties to fulfill the burden of proof, the ultimate criterion is whether the judge was persuaded, whether the formation of inner conviction. The standard of proof in administrative litigation is the judge in the trial in administrative litigation necessity subjective philosophy, a correct understanding of the objective facts.

    The characteristics of standard of proof in two, administrative litigation

    The object of administrative litigation is a specific administrative act, its influence on the administrative relative person's interests and public interests is complex, or even directly relates to the administrative relative person's rights. By comparison, the severity of the administrative litigation on public interests and personal interests than in civil litigation, criminal litigation below. Therefore, the standard of proof in administrative litigation is not like the criminal procedure that strictly, does not like civil litigation as low, should be in the intermediate zone. However, the diversity of the specific administrative act determines the diversity of administrative litigation object, therefore, the standard of proof in administrative litigation is not a single. With the standard, the standard of proof in criminal procedure in civil litigation proof, standard of proof in administrative litigation has the following characteristics:

    (a) standard has the flexibility of proof in administrative litigation

    First, because the burden of proof by the defendant in administrative litigation is the basic principle that, generally, the burden of proof is on the defendant, and the plaintiff and the three others without proof. With the development of the rule of administrative law, administrative behavior becomes more and more complex, litigation skills continue to improve, more and more advance the responsibility and burden of persuasion in administrative litigation. In addition, when the plaintiff and the third party in the interests of different position, the evidence and the defendant's evidence intertwined, which one is more important, how to choose difficult to judge. Practice shows that, the standard of proof in administrative litigation and administrative cases, details of the nature and severity of proportional relationship, administrative behaviors of the parties of the more significant, the standard of proof should be higher; standard of proof burden of persuasion in the same case to be higher than the standard of proof to promote responsibility. The standard of proof in administrative litigation flexibility shows that, because of the nature of administrative cases prove standards should vary, because the entity, procedure, burden of proof is different because of vary. If the standard of proof in administrative cases of a single or fuzzy obviously does not conform to the actual situation of the administrative management mode.

    (two) the standard of proof in administrative litigation with intermediate         

    Civil litigants generally in equal position, while in the fully the unequal status between criminal litigation. Therefore, the burden of proof should be relative and litigation status of their advantages and is the standard of proof beyond a reasonable doubt standard; and between the administrative status of the parties is complex, from the administrative legal relations perspective, officer in civil litigation rights; from the perspective of inferior to people, officer. Comparison between the power of this complex decisions of administrative litigation rights and obligations of the parties of different degrees of free in between, and sometimes even similar to a change, the lawsuit right and status determines the burden and standard of proof in administrative litigation between the former two. When a party of its own position at a disadvantage when the relative standard of proof, one side is high; in the two party itself the status of the other position, the burden of proof of both parties should be proof standard or obvious superiority proof standard. This is the standard of proof in administrative litigation intermediate.

    (three) the standard of proof in administrative litigation is changing

    As mentioned before, modes of administrative act is complicated, its behavior factors also have the very big difference, the legal relationship between the parties rights, obligations are different will lead to litigation in the appeal and the burden of proof is different. The administrative legal relationship, the relative person's right is in many aspects, the exercise of the range and degree of relative person and protected by the range and extent, affects both the burden of proof of litigation parties, the burden of proof similar cases are often different, in some cases there is only one kind of burden of proof, and but some also exist for different take different burden of proof, and the proof responsibility for promoting the different responsibility but with different order successively, the standard of proof is much more complex. Therefore, the standard of proof in administrative litigation is changing.

    (four) the standard of proof in administrative litigation has a review

    Administrative litigant to prove the legitimacy of specific administrative acts being sued, its position is the pursuit of their own interests, its performance is the burden of persuasion, and the people's court to review the legality of specific administrative act, the exercise of the right of judicial review, is the pursuit of social and public interests, therefore, the court judgment on the standard of proof is inevitable contains the standard itself, not as a criminal, civil litigation simply that support a conclusion. Judicial review of administrative litigation determines the nature of the standard of proof is not simply the ruling judge.

    Standard of proof in administrative litigation, three

    Standard, the standard of proof in civil litigation and criminal proof of the administrative litigation based on the different characteristics of the standard of proof in administrative litigation, should take the advantage of standard of proof for the principle, standard and "beyond reasonable doubt" that the evidence system of standard for added to prove the advantage, except as otherwise provided by law, the court shall generally be used obvious advantage that the standard that the facts of the case.

    (a)The advantage of the standard of proof-- Application of standard of proof in civil procedure

    Civil procedure is mainly to solve the equality right and obligation between the parties of the dispute, civil rights and obligations, punishing illegal acts, protect the lawful rights and interests of the parties. The standard of proof in civil procedure generally use the proof standard. The so-called advantage means that the standard: standard of proof of the facts of the case that the court provided according to prove the effectiveness of the dominant party evidence. Administrative litigation advantage means that the standard: standard of proof of the facts of the case that the court provided according to prove the effectiveness of the dominant party evidence. The standard of proof for the following general cases:

    1, relates to property or personal rights of the administrative adjudication of cases.

    Because property rights and personal rights dispute case of administrative adjudication is an administrative act refers to the administrative main body between the ruling parties in the identity of civil disputes. Because the object of administrative adjudication is a civil dispute rather than administrative dispute, so use in civil litigation proof standard is feasible in the case of administrative adjudication. Here the "advantage" refers to a relative evidence is another relative evidence is more convincing and proof. But the judicial review of administrative action is lawful sexual behavior in this administrative adjudication, the civil dispute has not only in civil litigation of civil disputes, but after a public power and civil disputes, the standard of proof so administrative organs to the judgment result than the same circumstances into civil litigation proof standard party more higher, administrative organs of the two party in itself evidence of difference and the non weight to determine the sufficient basis.

    2, not as a case.

    Not as to prosecute the defendant's case, according to the regulations, the plaintiff shall provide evidence in the administrative procedure has been filed, the burden of proof is on the plaintiff side, but the plaintiff belongs to the vulnerable groups, while agencies often lack complete registration system, the difficulty of proof, standard of proof on this issue, from the plaintiff point of view, should be applied to the superiority proof standard, as long as the application can have been made, and the performance of the burden of persuasion is obviously higher than that of the former. Therefore, the standard of proof of the plaintiff's claim superiority in such cases, for the administrative relative person's legitimate rights and interests of maximum protection.

    Fallout 3, administrative compensation cases.

    Administrative compensation in incidental dispute is the plaintiff of the specific administrative act caused the damage fact and the amount of compensation to provide evidence, the controversy and civil cases the same properties of both sides, and the administrative relative person claims for compensation equivalent to the corresponding civil rights, the administrative relative person has the right to dispose of the right to claim for compensation, it should also apply preponderance of evidence standard of compensation cases with incidental administrative.

    Two.Beyond a reasonable doubt standard-- Application of standard of proof in criminal procedure.

    Criminal procedure is to ensure accurate, timely find out the facts of the crime, punishment of criminals, to protect innocent people from criminal prosecution. The standard of proof in criminal procedure used is "beyond reasonable doubt" or "beyond reasonable doubt that the standard", this is the judicial proof procedure requires a proof of the highest standards of. The so-called "beyond reasonable doubt" standard of proof, is the main fact of case has the corresponding evidence, there is no contradiction between the evidence and between the evidence and the facts of the case, or if the contradictory but can be reasonably excluded. Here the "suspect" is an ambiguous or multi state of consciousness, with a normal rational person, the general people in the choice of can't rule out the possibility and feasibility for the other one time. Criminal procedure is a standard of proof so high is decided by the purpose of criminal litigation, it is to punish the criminals, but also to protect innocent people from criminal prosecution. Application in administrative litigation beyond reasonable doubt the main reason is the standard, administrative act is a multi-level, multi angle of administrative measures, including administrative behavior has the general administrative behavior, including close to civil parties desirable behavior, even including some more severe than administrative behavior criminal sanctions, such as the people's Government of reeducation through labor administrative authority, can limit the personal freedom of citizens over three years (an extension to four years), than in punishment, fine control, criminal detention is more severe. So in the administrative lawsuit in addition to the application of standard of proof in the obvious advantages of general standards, should also be applicable beyond reasonable doubt standard.

    For the citizens, legal persons or other organizations, the protection of major property rights often relates to their survival rights and other rights, the protection of major property rights are just as important as the protection of personal rights, thus applicable in administrative proceedings beyond reasonable doubt standard conditions due to a restriction, which must be have a great influence on the administrative relative person's personal rights and property rights. The significant influence on the degree of protection should be given the rights and interests of close degree of protection in the criminal procedure law to. Beyond all reasonable doubt can be specifically applicable to the following types of administrative cases:

    1, the restriction of personal freedom rights cases.

    The right of personal liberty is a basic human right is the most important, in the administrative cases, specific administrative acts according to the relative person's right of personal freedom to be strictly limited, the legitimacy of standard of proof should adopt the standard of proof in criminal procedure. Restrict the personal freedom of a citizen cases include summoned and lien, administrative detention cases and reeducation through labor cases.

  2, the application of hearing procedure has made the specific administrative act cases. According to the provisions of the law on administrative punishments, the administrative license law, matters relating to its business license shall be revoked, shall be ordered to suspend production or business, administrative penalties, the larger the amount of fines limited natural resources and other major administrative licensing matters, have a significant impact on the relative person's property right, the administrative organ shall give opposite party or the interested person hearing right before making the decision of punishment or licensing decisions, this is the procedural administrative organs to make more general program to high demand. This should be made on the application of hearing procedure, the cases of administrative standard of proof with the higher requirement of law administration.

    3, the people's court to change the decision requirements and perform case. The people's court to make change case is to make a decision between the administrative organs of the equality of the main case, the standard of proof of the defendant in such cases required by the people's court shall apply the standard of proof that advantage, but when one party requests the people's court for change decision, instead of administrative judgment in court judgment shall, to a higher standard to prove the possibility, the discretion of the executive authorities do error and no maintenance at this time, the people's court to resolve disputes and make change decision right.

    Three.Obvious superiority proof standard (also known as the "full and convincing standard")Administrative Litigation -- usually applicable standards.  

    Administrative litigation is administrative disputes between between legal persons and other organizations, administrative organs and citizens, not subjects with equal status, the specific administrative acts made by administrative organs is legal, the protection of citizens, legal persons and other organizations of the legitimate rights and interests, maintain and supervise administrative organs exercise their functions and powers according to law. Administrative adjudication is the exercise of the right to judicial review, is a kind of power restriction mechanism, it is a mechanism to regulate the administrative power, therefore, in administrative proceedings, the administrative organ shall bear the burden of proof is the basic principle, the burden of proof is greater legitimacy of specific administrative action which requires administrative organs to make for the burden of proof, which is opposite to the administrative relative persons of the nature is lighter, the standard of proof in administrative litigation should be most obvious advantages than civil cases, the weight light proof standard of criminal cases. The standard of proof is the obvious advantages, request the people's court to the facts of the case has the obvious superiority evidence to prove force.

    In administrative law, the administrative subject enjoys the national administrative power according to law, dominant, dominant position, while the private party in the administrative process to be always in the management, the dominated, can only use their rights under the law, regulations to allow the inner. The status of the inequality, leading to the administrative main body enjoy certain privileges granted by law in handling affairs, the investigation of certain matters with the administrative relative person more easily, have the ability to fully investigate and collect relevant evidence, to ensure that the decisions made by the facts are clear, evidence really fully. The administrative relative person may also provide relevant evidence, but most cases are not as good as the subject of administrative evidence provided comprehensive, system. So, the administrative litigation with the principle of superiority proof standard is consistent with the legislative intent of the administrative procedure law in our country, but also can reflect the fair, open, fair principles. For obvious superiority proof standard shall comply with the requirements are: administrative organs bear the main burden of proof and the corresponding push the further burden of persuasion, prove that the evidence validity than the other party to provide evidence that the effect has a larger advantage, the advantage is enough to make the court that the main facts of the case is true there is, or there is a real possibility.

    To sum up, the standard of proof in administrative litigation should be based on the obvious superiority proof standard for the principle, standard and "beyond reasonable doubt" standard of proof for a supplementary proof to advantage, nature, the administrative case to the litigant's rights affect the nature, size and the promotion of responsibility and other factors, applicable in the particular case specific evidence standard, to ensure that the facts are clear, irrefutable evidence, that the decision to meet the administrative rule of law, in order to maximize the protection of citizens, legal persons and other organizations of the legitimate rights and interests are not infringed.

    Criminal proof responsibility attributable to the prosecution, the standard of proof is beyond all reasonable doubt (beyond reasonable doubt), the proof standard is different from the comparative advantage of civil cases (preponderance of evidence) the rules of evidence, this sentence may be relatively obscure, the Simpson case for example can stick out a mile. In a criminal case, the prosecution of all the evidence points to Simpson is the murderer, the only exception is committing the gloves, the proof of the glove can not put into Simpson's hands, only this one evidence let the jury found Simpson not guilty, because this glove, let a person produce reasonable doubt, Simpson possible not the murderer; while in civil cases other can prove that Simpson is the murderer evidence than the glove can prove that Simpson is not the murderer has comparative advantage, that Simpson is likely to be the murderer.