중국 행정소송상 입증책임의 분배와 증명기준

In testimony system of chinese administrative litigation, there is a theory that burden of proof contains burden of presentation and burden of persuasion. And, in theory of distribution of burden of proof, which contains the theory of defendant burden, the theory of plaintiff burden and compromised view point. According to administrative litigation law, as a rule, defendant account for burden of proof. As to administrative litigation law provide the principle of defendant burden, there is many different view points in theory. In accordance with majority opinion of scholars, the boundary of burden of proof of administrative body is limited to lawfulness of administrative act, on the other side, as to matters of propriety, rationality or in case of state compensation, advocator account for the burden of proof. Moreover, about adoption of testimony standard, there is many different opinions, and the Administrative Litigation Law or the Supreme People's Court dose not have any norm or interpretation. It looks like good sound that testimony standard must be adopted case by case in administrative litigation. In this view point, testimony standard of burden of persuasion has three types, which standards conclude proof beyond a reasonable doubt, preponderance evidence and clear and convincing evidence. In specific case, administrative body apply it case by case. Especially, the Administrative Litigation Law provide the principle of defendant account for burden of proof, but in the administrative litigation, if administrative body account for burden of proof on the whole, it looks like impose heavy burden on the administrative body, and if we consider today's various administrative acts, necessarily, we have to approve its exception.