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将被告负证明责任作为政府信息不存在诉讼之证明责任分配的理论信条,源于对客观证明责任的适用前提、内在价值的误读,其既无法实现理论自洽,也无助于缓解司法僵局。信息不存在诉讼证明困局的破解须回归理论共识,厘清客观证明责任的诉讼推进和风险分担功能,以及此类诉讼证明对象的“双阶层”特性。在此前提下,以“规范说”为指导,结合实体法要件和立法精神,将“搜寻答复程序是否合法”和“信息是否存在”的证明责任分别配置于被申请机关和信息申请者;并辅以细化证据评价内容、降低证明标准、突破“案卷主义”束缚等证明方法。通过这种重构,既利于证明活动的有效展开,也利于维护司法统一和提升司法公信力,并达到抑制依申请信息公开中权利(力)滥用的目的。最后,欲从根本上化解信息不存在纠纷,还需完善信息公开相关配套制度。
The credo liability of the defendant as the proof of the government information does not exist in the distribution of the burden of proof theory of credo, from the objective proof of the burden of proof of the premise of the premise, misreading of the intrinsic value of both the theory can not be self-consistent, but also help to ease the judicial impasse . The absence of information litigation prove that the predicament of the crack must be returned to the theoretical consensus to clarify the burden of objective proof of the lawsuit promotion and risk-sharing functions, as well as the evidence of such litigation “double-class ” characteristics. Under the premise of this, guided by “standardization ”, combined with the substantive law requirements and the legislative spirit, the responsibility of proving “search reply procedure is legal ” and “information exists And information applicants; supplemented by detailed evidence to evaluate the content, reduce the standard of proof, breaking ”file system " and other proof methods. Through such reconstruction, it not only helps to prove the effective commencement of activities, but also helps maintain judicial unity and enhance the credibility of the judiciary, and to achieve the goal of restraining the abuse of rights (powers) in the application for information disclosure. Finally, to fundamentally resolve the information there is no dispute, but also improve the relevant information disclosure system.