The Relation Between Competency Of Evidence And Probative Value Of Administrative Litigation

In the administrative procedure law,the evidence rules of administrative litigation are mainly legal norms to regulate the competency of evidence and probative value.The relationship between the two should put the competency of evidence in the first place,and only with the competency of evidence can we judge the weight.However,in the practice of administrative litigation in China,there is a mismatch of the competency of evidence and probative value.Given the court of administrative organs that the fact adopt comprehensive review system,in some cases,the judges for the case evidence is the first weight of evidence,if the evidence of probative force for the case to prove the fact is strong,as an important factor,then judge the competency of evidence.If the judge thinks that the evidence in the case is strong,the evidence that does not have the competency and that should be excluded according to the rules of evidence will also be adopted by the judge.When the trial personnel are in doubt about the supporting power of the evidence or think that the evidence does not have the supporting power at all,they will consider excluding the evidence.Coincidentally,in fact,this phenomenon happens to appear in the foreign judicial practice.The reasons for this phenomenon are complex and multiple.The reason is that the definition of competency of evidence is wrong.In the process of reviewing the evidence capacity of the evidence in administrative proceedings.There is a situation in which the problem of evidence ability is mixed with the problem of proof force.The ability to review the evidence is the same as the subject of proof.When the same judge panel makes a judgment on the evidence capacity and evidence force of the evidence.The risk or uncertainty of the referee cannot be avoided.In China’s specific judicial practice,administrative litigation implements a comprehensive review mode.The judge’s review and judgment of administrative litigation evidence is a two-in-one review process of evidence ability and proof power.There is no intentional distinction between the two relationships.Does not distinguish between the authenticity of the evidence ability level and the authenticity of the proof power level.The prohibition standard of evidence ability and the evidence exclusion rule involve the complicated and complicated fact determination problem in the practice of administrative litigation.The contradiction between the lag of the administrative evidence rules and the particularity of the trial object of the administrative litigation is more obvious.For the solution of this phenomenon,the boundary between the evidence ability and the proof power should be clarified.It is suggested that the ability of administrative litigation evidence should be relatively statutory.On the one hand,the Provisions on Administrative Litigation Evidence should be improved and the most accurate and detailed provisions for the situation of litigation evidence that should be excluded.On the other hand,it should be forced to exclude the administrative litigation evidence that conforms to the evidence prohibition norms or the situation of legal evidence exclusion,so as to limit the improper influence on the proving power of the evidence from the source.From the starting point of the evidence ability rule in administrative litigation,the boundary is delimited for the relationship between evidence ability and proof ability and the strict formal evidence review mode is no longer applied to the rule of illegal evidence exclusion as appropriate.For hearsay evidence rules,best evidence rules of evidence in the judge can clearly that the evidence has the proof force and the evidence of proof larger discretion considering counter,limit the counter in hearsay rules,the best evidence rules based on the accuracy of evidence ability of rules,at the same time to ensure that conform to the legal procedure specification,limit the abuse of the judge’s discretion.