Author: Jialing Riverside Old Talk
This punishment case should be "innocent of doubt", and the principle of "preponderance of evidence" should be applied to that case, which is one of the common arguments of law enforcement officials when discussing cases. Why is there such an argument?Because administrative law enforcement does not have its own rules of evidence, it is difficult to determine between the "innocence of doubt" in criminal cases and the "preponderance of evidence" in civil cases. In a case, it is often the case that some people think that the facts are clear, while others think that the facts are unclear. The long-term lack of clarity about the rules of evidence for administrative punishments, including the standard of proof, is a major problem that plagues administrative law enforcement work. Due to the obvious lag of administrative law in China compared with criminal and civil law, and the long-term influence of policies, the foundation of administrative law is relatively weak. In recent years, due to the lack of rationalization of basic theories, the impact on administrative legislation and law enforcement work has become more and more significant, and it is difficult to use a set of systematic theories to explain some legal issues in law enforcement practice.
This week, Tan Lu boldly discusses some theoretical issues and application practices of the rules of evidence for administrative law enforcement. Since it involves the most basic theories of administrative law, there are few reference materials, and Tan Law has not been systematically and thoroughly studied, so mistakes are inevitable for reference. This article consists of three parts, and today I will share the second part.
II. The connection and difference between administrative punishment evidence and the rules of evidence in administrative litigation
(1) The continuity of evidence for administrative punishments. Theoretically speaking, administrative punishment cases should be investigated and dealt with in accordance with their own rules of evidence, so as to achieve the goal of administrative management. The standard of evidence for administrative cases varies according to the category, and the standard of proof for different parts of the facts of the case is also different. Strictly speaking, it is sufficient for administrative organs to handle it in accordance with the principle of administrative efficiency and the rules of evidence for administrative punishment (conduct). However, according to the rules of evidence for administrative litigation, administrative organs are required to bear the burden of proof of the legality and appropriateness of administrative acts, and the system of evidence rules for administrative punishments (acts) is ultimately subject to the test of administrative litigation trials. Therefore, the requirement for evidence in administrative litigation will inevitably affect the handling of administrative punishment cases. In this way, justIt confuses the evidentiary standards between administrative management and judicial adjudication, breaks the continuity of evidence for administrative punishment, and ultimately inevitably affects the achievement of administrative management goals.
(2) Objective facts and legal facts. The so-called objective facts refer to the facts that really happen, and they are not transferred or changed by human will. The so-called legal facts refer to the facts proved by the application of the rules of evidence according to the evidence of the case. Whether it is an administrative punishment or a judicial trial, it is "based on facts". So, is this "fact" an objective fact, or a "legal fact"?Some people think it is an objective fact, some people think it is a legal fact, and some people think that it is a legal fact based on objective facts. Tan Lu believes that objective facts exist, but they are all facts determined based on the rules of evidence provided by existing laws, and their essence is still legal facts. The so-called ironclad case refers to a legal fact that is infinitely close to objective facts and can stand the test. An administrative violation committed by a person is an objective fact, but if the evidence cannot prove it, this objective fact cannot be turned into a legal fact. However, if the case is not handled in accordance with the rules of evidence, the legal facts ascertained will be far from the objective facts. Therefore, the determination of every legal fact is closely related to the rules of evidence.
(3) Legal provisions on the standard of proof. Although the three lawsuits all require "factual clarity", this level of clarity is different. The standard of proof in civil litigation cases is "preponderance of evidence" or "high degree of probability", in criminal cases the standard of proof is "beyond reasonable doubt", and in administrative litigation cases, it is a "clear and convincing" standard between civil and criminal cases. In the above-mentioned discussion of administrative punishment cases, some comrades held that "reasonable doubt has not been eliminated," and it is obvious that the standard of proof for the facts of administrative violations has been excessively high.
1.Standard of proof in criminal proceedings. There is a standard of proof for "beyond a reasonable doubt" in criminal cases. Paragraph 2 of Article 55 of the Criminal Procedure Law stipulates that the following conditions shall be met if the evidence is credible and sufficient: (1) the facts of conviction and sentencing are proved by evidence;(2) The evidence on which the verdict is based has been verified as true through legally-prescribed procedures;(3) Synthesize all the evidence in the case and make a review of the facts ascertainedA reasonable doubt has been eliminated
2.Standard of proof in civil litigation. The "preponderance of evidence standard" or "high degree of probability" in civil cases is only the mainstream theoretical viewpoint, and there are certain differences between the provisions in the law.
1) In accordance with the provisions of Article 108, Paragraph 1 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, the people's court shall examine the evidence provided by the party who bears the burden of proof and combine the relevant factsWhere it is convinced that the existence of facts to be proved is highly probable, it shall be found that the facts exist.
2) Article 109 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China stipulates that the people's court shall prove the facts of fraud, coercion and malicious collusion, as well as the facts of oral will or giftWhere it is convinced that the possibility of the existence of the facts to be proved can be eliminated beyond reasonable doubt, it shall be found that the facts exist. Paragraph 1 of Article 86 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulates that if a party proves the facts of fraud, coercion or malicious collusion, as well as the facts of oral wills or gifts, and the people's court is convinced that the possibility of the existence of the facts to be proved can be eliminated beyond reasonable doubt, it shall find that the facts exist.
3) Paragraph 2 of Article 86 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulates that the people's court shall combine the explanations and relevant evidence of the parties for facts related to procedural matters such as litigation preservation and recusalWhere it is found that there is a greater possibility that the relevant facts exist, it may be found that the facts exist.
3.Standard of proof for administrative litigation. Regrettably, due to the controversy over the standard of proof in administrative litigation, there are no clear provisions in the Administrative Litigation Law, the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China, and the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation. However, there is still a standard of "conclusive" for the evidence of administrative acts. Article 69 of the Administrative Litigation Law stipulates that evidence of administrative actsConclusiveWhere the applicable laws and regulations are correct and comply with the legally-prescribed procedures, or where the plaintiff's reasons for applying to the defendant to perform the legally-prescribed duties or payment obligations are not sustained, the people's court shall make a judgment rejecting the plaintiff's litigation claims. As to what constitutes conclusive evidence, there is no clear further provision or explanation. Therefore, the standard of proof of "clear and persuasive" in administrative litigation is only a theoretical understanding.
4.Standard of proof for administrative reconsideration. Article 68 of the "Administrative Reconsideration Law" stipulates that if the facts ascertained in an administrative act are clear, the evidence is conclusive, the basis for application is correct, the procedures are lawful, and the content is appropriate, the administrative reconsideration organ decides to uphold the administrative act.
The standard of proof for administrative punishment. Article 40 of the Administrative Punishment Law stipulates that if a citizen, legal person or other organization violates the order of administrative management and shall be given an administrative penalty in accordance with the law, the administrative organ must ascertain the facts;Where the facts of the violation are unclear or the evidence is insufficient, administrative punishments must not be given. Article 51 of the Law stipulates that the facts of the violation are conclusive and there is a statutory basisCitizens are fined not more than $200to legal persons or other organizationsWhere an administrative punishment of a fine of up to 3,000 RMB or a warning is imposed, an administrative punishment decision may be made on the spot. Where the law provides otherwise, follow those provisions.
(4) The characteristics of proof of administrative punishment. Compared with the standard of proof for administrative reconsideration and the three major lawsuits, the proof of administrative punishment is characterized by the fact that the law enforcer has personally experienced the facts. Whether it is an administrative reconsideration or a major lawsuit, the adjudicators (personnel) prove (deduce) the legal facts according to the existing rules of evidence based on the evidence that has been formed in the case, and their goal is to make the legal facts infinitely close to the objective facts. Administrative punishment is different, especially in cases where the case-handling personnel are punished according to summary procedures, the referee (law enforcement officer) is a person who has personally experienced the illegal act, personally sees, perceives and observes the whole or part of the illegal act, and then makes an administrative penalty based on the evidence. Therefore, excluding professional ethics factors such as abuse of power by law enforcement personnel, the legal facts proved in administrative punishment cases are closer to objective truth.
On the other hand, when determining the facts of an administrative punishment case, it is necessary to pay attention to examining evidence that affects the fairness of law enforcement and the subjective assumptions of law enforcement personnel. For example, whether law enforcement personnel will create unjust, false and wrongful cases due to the pressure of the number of penalties and the pressure of solving cases, whether there are personal grievances and retaliation, and whether there is selective law enforcement for the exclusion of market competitors for specific targets. The law enforcer's personal experience is that administrative punishment is an advantage over reconsideration litigation case, but blindly believing in law enforcement personnel may also lead to subjective assumptions and abuse of power. When reviewing the process of evidence and proof in administrative punishment cases, personnel in legal posts should pay special attention to the fact that they cannot completely follow the standards for intermediate judgments in litigation, nor can they preconceive the verdict based on the subjective statements of the case-handling personnel.
In the practice of adjudicating cases, with the experience and experience of front-line law enforcement and case handling, as well as the provisions of laws and normative documents, legal personnel are able to discover problems such as selective law enforcement and retaliatory law enforcement in individual cases. From this point of view, legal personnel must be selected from among those who have experience in front-line law enforcement, otherwise it is easy to review administrative punishment cases in strict accordance with judicial case-handling standards or to deviate from reality, and front-line case-handling personnel will have a terrible headache. Of course, it is also necessary to avoid selecting legal personnel solely on the basis of law enforcement experience, otherwise it will become an empirical case-handling, which is also one of the main problems existing in the current law enforcement contingent in handling cases. Therefore, a person with extensive experience in law enforcement and a legal professional qualification should be the best choice.