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Changing the burden of proof in the administrative proceedings of the People's Republic of China and Russia

Обновлено 20.02.2024 05:59

 

The article considers the issue of changing the burden of proof of certain circumstances in the administrative proceedings of the People's Republic of China in the event that evidence cannot be presented for a reason related to the conduct of an administrative body. A comparison is made with the legal regulation of similar situations in the Russian process. It is concluded that it is necessary to include an identical norm in the procedural codes of Russia.

 

Keywords: administrative proceedings, PRC, burden of proof, retention of evidence.

 

The legislative regulation of the consideration of administrative cases by courts in the People's Republic of China (PRC) is currently carried out by the Administrative Procedure Code (APC) of the People's Republic of China, originally adopted on October 4, 1989. <1>

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<1> Further in the text - the Agroindustrial Complex of the People's Republic of China.

 

In accordance with the CPC of the People's Republic of China, cases are subject to consideration on claims of citizens and organizations (including legal entities) challenging acts of public administration bodies and employees of these bodies, as well as organizations authorized in accordance with laws, by-laws and departmental acts to impose administrative penalties and measures of administrative coercion, as well as actions, inaction and the decisions of the administrative authorities listed in Article 12 of the CPC of the People's Republic of China, in accordance with laws and regulations.

The burden of proving the commission of the contested act and the grounds for its commission, including the submission of regulatory documents, rests with the defendant.

In the administrative proceedings of the People's Republic of China, the plaintiff has the right, but is not obliged to provide evidence confirming the illegality of the administrative act. Failure to exercise this right does not relieve the defendant of the burden of proof.

In cases of administrative compensation or compensation, it is the plaintiff, in addition, who is obliged to provide evidence of the harm caused by an administrative action. If there are any reasons related to the defendant that prevent the plaintiff from presenting evidence, then the rule of the CPC of the People's Republic of China on the transfer of the burden of proof of harm caused by an administrative act to the defendant is subject to application.

The Russian Code of Administrative Procedure does not contain a similar rule. The current legal regulation of the consideration of administrative cases is based on the obligation of the administrative plaintiff, the prosecutor, bodies, organizations and citizens to confirm the facts to which they refer as the basis of their claims and objections, with the exception of the obligation to prove the illegality of the disputed acts.

Judicial practice has developed a rule according to which the court has the right, taking into account the circumstances of an administrative case, in order to solve the tasks of administrative proceedings, implementing the principle of adversarial and equal rights of the parties with an active role of the court, to impose on the person participating in the case, endowed with public authority, the obligation to submit evidence and objections in writing within a certain period of time. For failure to fulfill this obligation, a court fine may be imposed on a person participating in the case, including on the side of an administrative trial (art. 3, para. 7 Articles 6, Articles 9, 14, 63, part 5 of Article 135, part 1 of Article 257 of the Code of Administrative Procedure of the Russian Federation) <2>.

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<2> Paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 13, 2017 No. 21 "On the application of procedural coercion measures by courts in the consideration of administrative cases".

 

The Civil Procedure Code of the Russian Federation also does not know the prohibition of demanding evidence from persons participating in the case, however, it also contains a more effective way than a fine to compel a person participating in the case to submit withheld evidence: if one party fulfilled the burden of approval and pointed to the evidence held by the other party, and the other party retains the available if she has proof, then in this case the court is authorized to recognize the alleged fact as proven.

The procedure for consideration of cases by arbitration courts in the order of administrative proceedings includes the right of the administrative court to demand, on its own initiative, evidence to confirm or refute the circumstances to be proved by both a person with public authority and other persons. The powers of the arbitration court to proactively request evidence not provided by persons with public authority in support of their objections have also been confirmed by the Constitutional Court of the Russian Federation <3>.

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<3> Ruling of the Constitutional Court of the Russian Federation dated January 24, 2006 No. 8-O "On refusal to accept for consideration the complaint of the West Ural regional Public organization of disabled people "Vozrozhdenie" for violation of constitutional rights and freedoms by part 2 of Article 200 of the Arbitration Procedural Code of the Russian Federation".

 

The practice of arbitration courts after the entry into force of the modern agro-industrial complex of the Russian Federation, but in the absence of appropriate changes in it, has developed a rule used primarily in resolving corporate and bankruptcy cases, according to which, if a person holds evidence confirming a fact to be proved by his procedural opponent, such a fact becomes presumable, and the burden of proof is shifted to the holding side <4>.

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<4> See: Khalatov S.A. Retention of evidence by the parties to civil and arbitration proceedings // Problems of implementing the norms governing evidence and proof in civil, arbitration and administrative proceedings: Collection of articles on the mat. international scientific and practical Conference St. Petersburg: Publishing House "Petropolis", 2015. p. 372.

 

As follows from the presented norms, unlike the CPC of the People's Republic of China, Russian procedural codes do not know the rules on shifting the burden of proof of circumstances, usually proved by a subordinate party, to the administrative body whose act is disputed, if it withholds evidence. At the same time, judicial practice, based on the objectively existing need to establish the circumstances of the case in conditions of actual concealment of evidence, formulated a rule similar to the rule contained in the CPC of the People's Republic of China.

It seems that the inclusion in the corpus of legally fixed procedural rules of the norm on shifting the burden of proof to a party with public authority, in case it withholds evidence confirming the claims or objections of other persons, contributes to more effective protection of the rights, freedoms and legitimate interests of citizens and organizations objectively deprived of a real opportunity to present evidence in the process of consideration and resolution the court of administrative case.