항고소송에서의 증명책임 분배:법률요건분류설을 중심으로

Although a relatively large number of papers have been published recently on the burden of proof in administrative litigation (specifically, appeals litigation), the main trend has been to criticize the principle of classification of legal requirements—central to civil litigation—and to establish a new principle for the allocation of the burden of proof based on the differences between administrative and civil proceedings. Critics argue that while judicial legal norms are formulated as adjudicative norms and thus incorporate principles of reasonable allocation of the burden of proof from the perspective of balancing interests, administrative legal norms—being substantive administrative law—function more as behavioral norms for administrative agencies than as adjudicative norms. Therefore, the principles of civil litigation cannot be directly applied to administrative litigation. Furthermore, administrative legal provisions are often complex and multifaceted, making it difficult to classify them into categories such as rights-establishing provisions, rights-obstructing provisions, or rights-extinguishing provisions. Unlike civil litigation, which involves disputes between equal private parties, appeals litigation involves a private party and a public authority, making the direct application of civil litigation principles unreasonable. While the criticisms are valid, the allocation of the burden of proof is not subject to the judge’s free discretion, as it can determine the outcome of a case. Thus, it is preferable for such allocation to be determined legislatively rather than through judicial theory or discretion. In civil litigation, the classification of legal requirements is the prevailing theory and case law, based on the assumption that the legislature has predetermined the factual elements for which the burden of proof lies. Although neither the Civil Act nor the Civil Procedure Act explicitly stipulates general principles of the burden of proof, individual provisions in civil law, commercial act, special civil statutes, and family litigation law indicate that the legislature’s principle of allocation aligns with the classification of legal requirements. Appeals litigation differs from general civil litigation due to the unique nature of administrative acts and the structure of appeals litigation. However, it is essentially a subjective rights relief litigation. Given that the allocation of the burden of proof can determine the outcome of a case, legislative intervention is necessary. According to Article 8(2) of the Administrative Litigation Act, the principles of burden of proof in civil litigation should be applied mutatis mutandis. Moreover, even under the classification of legal requirements theory, unreasonable allocation of the burden of proof does not necessarily result. Therefore, in the absence of specific provisions on the allocation of the burden of proof in the Administrative Litigation Act, the classification of legal requirements should not be easily abandoned. Of course, considering the public interest and procedural particularities of appeals litigation, it is difficult to uniformly apply civil litigation principles, and in exceptional cases, judicial investigation ex officio and relaxation of proof standards may be necessary. Nevertheless, since administrative legal norms must also function as adjudicative norms, the classification of legal requirements can serve as a useful standard for legislators, practitioners, and courts alike. Accordingly, future legislative improvements should introduce explicit provisions on the allocation of the burden of proof in the Administrative Litigation Act or apply substantive legislative techniques that reflect the classification of legal requirements.