The Burden of Proof in Administrative Decisions

In practice, legal professionals often say, "the burden of proof lies, there lies the defeat." But what about administrative decisions? When facing unfavorable administrative decisions, how should the burden of proof be distributed? Does it mean we are in the wrong just because the administrative agency says so?

There are many types of administrative litigation, and the allocation of the burden of proof varies according to whether the litigation is related to the public interest. If it is not related to the public interest, according to Article 136 of the Administrative Litigation Act, applying Article 277 of the Civil Code by analogy, the party claiming a fact beneficial to themselves bears the burden of proof. However, this is not the case if the law specifies otherwise or if it is manifestly unfair.

Case Background

Da Hua Company, a legally operating construction company with years of experience in contracting public works from the government, suddenly received a letter from an administrative agency. The letter stated that Da Hua Company had breached the contract by submitting false documents. However, the letter vaguely mentioned the falsity of the documents without presenting any evidence or argumentation, stating that Da Hua Company violated Article 101 of the Government Procurement Act and would be listed in the government procurement gazette. Da Hua Company felt unjust and sought our assistance to object to the administrative agency.

Our Practice Experience

Our analysis suggests that "Simply put, illegal facts should be determined based on evidence. Without evidence, illegal facts cannot be presumed through hypothetical speculation, which is a common rule applicable to both judicial litigation and administrative procedures. Hence, the administrative agency should investigate and present evidence to prove the existence of illegal actions before making a burdensome decision against the people. In other words, the administrative agency bears the burden of proof for the existence of illegal facts, while the people do not need to prove their innocence. If the evidence gathered is insufficient to prove the people's illegal actions, a decision favorable to the people should be made without needing any favorable evidence."; "According to Article 133 of the Administrative Litigation Act, administrative courts indeed have the duty to investigate evidence ex officio. However, when an administrative agency makes a penalizing decision against the people, it should specifically identify the violative actions of the person being penalized and explain the reasons for its determination, bearing the burden of proof." This is supported by judgments No. 494 of 2009 and No. 432 of 2017 from the Supreme Administrative Court. These judgments indicate that the administrative agency should investigate the evidence before making a penalizing decision against the people and also bear the duty to explain the reasons for its factual determinations, whereas the people do not bear the burden of proving their innocence.

In conclusion, our lawyers believe that the administrative agency failed to discuss or prove the alleged falsity in Da Hua Company's contract documents, making the administrative decision illegal. We assisted Da Hua Company in declaring objections to the administrative agency.