行政诉讼中法院分配证明责任的正当性及路径研究

Research on the Legitimacy and Path of Court’s Assignment of Burden of Proof in Administrative Litigation

摘要: 按照“规范说”的理论，证明责任的分配应该完全依照实体法的具体规定，不能交由法院自由裁量。然而随着新型案件的出现，在案件事实真伪不明的情况下，严格按照实体法的证明责任分配可能会带来不公正的后果。此种情形下，应当引入“价值衡量理论”，不仅关注于案件事实本身，更着眼于社会利益、公平正义理念等因素进行合乎情理的裁量。行政诉讼作为客观诉讼不同于民事诉讼，在裁判过程中，法院具有更强的职权探知倾向，通过诉讼欲达到的目的也不尽相同。但是在权力正当性的基础上更需考量如何逐步推动并防止权力的恣意行使。

Abstract: According to the “normative theory”, the distribution of the burden of proof should be completely in accordance with the concrete provisions of the substantive law, and can not be left to the discretion of the court. However, with the emergence of new cases, the distribution of burden of proof in strict accordance with the substantive law may bring unfair consequences when the truth of the case is not clear. In this case, the “value measurement theory” should be introduced, which not only focuses on the facts of the case itself, but also focuses on social interests, fairness and justice concepts and other factors for reasonable discretion. As an objective lawsuit, administrative litigation is different from civil litigation. In the process of adjudication, the court has a stronger tendency to explore the authority, and the purpose to be achieved through litigation is different. However, on the basis of the legitimacy of power, we need to consider how to gradually promote and prevent the arbitrary exercise of power.