항고소송에 있어서 입증책임

Abstract

This thesis analyzes the burden of proof in administrative litigation. Theresearch methods employed in this thesis include examining the developmentof legal systems, case laws and theories related to this problem in Korea. The theories of evidence law in administrative litigation are developed toescape non liquet. When the court confronts the situation of non liquetduring confirmation of the facts, the court can not apply law to the disputingcase. To solve this problem, the theories of evidence law in administrativelitigation are made and developed. But there is no provision to regulate theburden of proof in the Administrative Litigation Law of Korea. The burdenof proof in administrative litigation is solved through the theories of evidencelaw. This thesis　analyzes the merits and demerits theories of evidence lawin administrative litigation and cases related to this problem. When the courtdecides the burden of proof in administrative litigation, it should consider thestructure of law which regulates the disposition, the distance of evidencefrom parties concerned and the difficulty of evidences to prove by partiesconcerned comprehensibly. The Administrative Litigation Law Article 26 regulates ex officio examination. It relates with problems of the separation between the burden of proof inadministrative litigation and the burden of assertion. Within the scope toadmit inquisitorial procedure in Administrative Litigation, problems relatedto the burden of assertion can not be raised. The features of evidence law in administrative litigation come frommaldistribution of evidence and information to the administrative agency,technically specialized evidence, the high necessity of protecting public interests. These kind of features of law in administrative litigation should be reflectedin the process at a convincing level to admit as evidences.