Allocation of the Proof Responsibility in Administrative Acts: Analysis Based on Law and Economics

Abstract

An administrative act needs to have a clear basis. The adequacy of the basis is an important factor in determining the legality of an administrative act. The purpose of creating the proof responsibility in administrative acts is to facilitate administrative acts, in order to achieve the substantive administrative rule of law. In reality, administrative subjects, due to various considerations, entrust a portion of the proving task to the administrative counterpart. This setting meets the requirements of optimizing the allocation of social resources in some cases, but there are also many problems. On the one hand, the setting of elements such as the matters to be proven and the subject of proof lacks value coordination, which increases the burden on the relative party and violates the principle of consistency between the utility function of legal producers and consumers. On the other hand, applying the self certification of the relative party indiscriminately to all categories of matters violates the transaction cost analysis theory of the law. Guided by the methodology of economic analysis of law, exploring the allocation of burden of proof in administrative acts, and conducting cost-benefit analysis for different modes of burden allocation, are of great significance for determining appropriate rules of proof in practice.