Study On The Burden Of Proving Damage Facts In Paragraph 2 Of Article 38 Of The Administrative Procedure Law

There are many issues in the judicial application process of Article 38,Paragraph2 of the Administrative Litigation Law.In practice and theory,the understanding of the burden of proof of damages in this provision is mostly that the plaintiff bears the subjective burden of proof or the initial burden of proof,but the nature of the responsibility under this understanding is not clear,and the judicial standards in administrative compensation litigation are also not unified.Therefore,it is necessary to refer to the theory of burden of proof in the field of civil litigation to make a correct interpretation of the burden of proof of damages in Article 38,Paragraph 2:In special cases where the defendant’s reasons prevent the plaintiff from providing evidence,the interpretation of the damage facts should be more detailed when determining the damage facts.Combining the nature of the damage,it is divided into the determination of the damage establishment and the scope of the damage.In terms of damage establishment,based on the reversal of the burden of proof of the damage facts to the defendant,the conditions and consequences of the case clarification obligation are introduced.At this stage,the plaintiff only bears the obligation of case explanation,not the burden of proof.In terms of the determination of the amount of damage,the legislative experience of civil litigation laws in Germany,Japan and other regions is initially introduced,and the determination of the amount of loss is understood as a legal evaluation problem,and the judge has the discretion to assess the loss and determine the amount of compensation.The first chapter outlines the judicial status quo of the application of Article 38,paragraph 2.Starting from different understandings of judicial data and judgments in the Supreme Court,this section points out that there is no unified understanding of the rules of proof of the facts of damage under Article 38,paragraph 2 in current judicial practice.In conjunction with Guiding Case No.91,most viewpoints in practice believe that the judicial norms established by this guiding case are only limited to the plaintiff’s preliminary evidence situation,and that support should be given to the plaintiff’s compensation claims that are in line with common sense.However,there is no unified standard for whether the plaintiff’s claims in other situations can be supported.The second chapter reviews the legislative background of Article 38,paragraph 2.The legislative purpose of this provision is to alleviate the problem of difficulties in proof faced by plaintiffs in administrative compensation litigation,particularly in cases of forced demolition.However,Article 38,paragraph 2 only provides a principle-based provision,and the characterization of the burden of proof for the defendant is not clear,nor are the consequences of failure to provide evidence.Based on this,this section mainly summarizes the issues and deficiencies in the interpretation of this provision.The third chapter begins to address the issue by first clarifying the basic concept of the facts of damage to be proved.Starting from the theory of facts of damage in the continental legal system,this paper adopts a fact-based approach more in line with the needs of judicial procedures,pointing out that the damage and the scope of compensation in the elements of civil liability are different levels and different stages of the civil litigation process: as a constituent element belongs to the field of fact judgment,as a compensation scope belongs to the discretionary judgment problem.The fourth chapter analyzes the interpretation strategy that should be adopted for Article 38,paragraph 2.It is necessary to adhere to the objective burden of proof reversal to the defendant in the special circumstances of the loss of facts as stipulated in Article 38,paragraph 2.At the same time,the alleviation strategy for the defendant’s proof difficulties should be analyzed: the plaintiff should bear the obligation to clarify the facts in the proof stage of the loss,rather than the subjective burden of proof.After the proof responsibility for the loss facts is properly allocated,in determining the specific amount of damages,the legislative experience of civil procedure laws in Germany,Japan,and other regions,as well as the theoretical framework of "legal evaluation theory",can be referred to.The judge should exercise discretion to assess the damages and determine the compensation amount.This interpretation is also more in line with the guiding principles of Guiding Case No.91.