| The administrative public interest litigation system is a new system based on the overall goal of the modernization of national governance capacity and governance system,aiming at the institutional weaknesses exposed in the legal protection of public interests in China,and combining with the reconstruction of the business content of Procuratorial Office.The system consists of two parts: pre-litigation procedure and litigation procedure,among which pre-litigation procedure is the main way to realize the expected goal of the system and play the expected effectiveness of the system.While the litigation procedure reflects the stipulation of the "quality" of the system.Since the pilot of the administrative public interest litigation system in June 2015,actually it has achieved remarkable results: at the normative level,the concept of "pre-litigation procedure" has been preliminary established as a special orientation;The normative system of the operation of the pre-litigation procedure has been basically established;The link setting of pre-litigation procedure is clarified.In practice,what the Procuratorial Office has done in number of cases handled,number of cases closed,proportion of rectification has reflected the role and function of "pre-litigation procedure",which played in the implementation of protection of public interest and supervision administrative power.And through a lot of working practice,the Procuratorial Office constantly sum up case handling experience,explore the law of handling cases,reconstruct organization structure,innovate ways of handling cases and revise the Standard Text to meet the requirement for public interest litigation cases.Now the Procuratorial Office preliminary implements the role transformation and adapt the responsibility requirements in pre-litigation procedure.But,as a new legal system,with the deepening research and practice of the administrative public interest litigation system,issues related to pre-litigation procedure need to be further improved: the theoretical basis of pre-litigation procedure still needs to be further revealed(Chapter 1),the practical experience of pre-litigation procedure still needs to be further summarized(Chapter 2),the link setting of pre-litigation procedure still needs to be examined again(Chapter 3 and Chapter 4).The theoretical basis of pre-litigation procedure is the support of pre-litigation procedure norm and practice,meanwhile it can provide guidance for the subsequent development and improvement.From the perspective of function is a way to reveal the theoretical basis of a certain system.Therefore,the pre-litigation procedure contains the functions of protecting the public interest,supervising the administrative power and administrative power gives priority to protecting the public interest.Correspondingly,the theory of legal protection of the public interest,the theory of legal supervision of the executive power and the theory of the priority of the protection of the executive power constitute the theoretical basis of the pre-litigation procedure.Specifically,Firstly,although there are many different perceptions of the public interest,there is no denying that the public interest is indeed an independent interest,which has formed two relations with the individual interest: on the one hand,the individual interest is the source of the public interest,and the public interest naturally contains the individual interest;On the other hand,the public interest is independent and can be a reason to limit the individual interest.The public interest is protected by law not only because it is an independent interest,but also because it tends to be generalized and neglected in practice compared with individual interests.If being generalized,the public interest would become the "legitimate excuse" to infringe individual interest;if being neglected,the public interest would result in the loss of the legal protection that should be obtained as part of the public interest.However,there are the following difficulties in protecting the public interest: first,the uncertainty of the interest content blurs the protection content;second,the beneficiary’s uncertainty affects the claimant;Third,the beneficiary subject is uncertain and needs preventive protection;Fourth,the areas involved are highly technical to enhance the difficulty of protection.Therefore,special means of legal protection of the public interest should be established--for example,public interest litigation.As an integral part of the administrative public interest litigation system,the pre-litigation procedure can naturally protect the public interests.In addition,the pre-litigation procedure also has a unique function which differs from the litigation procedure: public interest identification function.This is due to a fit in character of the pre-litigation procedure and public interest recognition: first,status predisposition corresponding to identification premise,second,case coreection corresponding to identification justice,third,procedure finalization corresponding to result generalizability,fourth,the independence of the subject corresponding to identify fairness.Secondly,it is a consensus on the system that the administrative power should be supervised by law.On the one hand,because of the embedded administrative public interest litigation,it has the function of supervising the administrative power,on the other hand,it is also the innovative way of supervising the administrative power.It makes up for the shortcomings of the existing supervisory administrative system: the lack of special supervision of administrative act,the lack of relief in the field of public interest and the lack of participation of social power in supervision.In terms of supervision mode,pre-litigation procedure,as a way of procedure control,play advantages such as formal stability,justice,bargaining and clarity of language,etc.,and realizes the above advantages through institutional design,participation role clarification and negotiation process.Third,the state-based on the public nature of its creation and functions-becomes the appropriate subject to protect the public interest.State power is divided into several parts and delegated to different state institutions,which should promote and protect the public interest in general,but there are differences in ways and characteristics.Both administrative organs and judicial organs protect public interests by implementing laws.However,compared with judicial power,administrative power has advantages of professionalism,efficiency and organization and coordination,so it should be taken as the priority way to protect public interest.The establishment of pre-litigation procedure is a concrete practice to realize the transformation from judicial procedure to administrative procedure and reflect the priority idea of executive power protection."Pre-litigation procedure" is a concept of timeliness,which especially refers to the pre-litigation procedure in the system of public interest litigation initiated by the Procuratorial Office in the fourth Plenary Session of the 18 th CPC Central Committee(also known as "procuratorial public interest litigation").The reason why we should highlight the timeliness of this concept is before this,the local Procuratorial Office has tried many times to protect the specific public interest damaged by means of litigation,also known as "public interest litigation".But they all abort because of the lack of legal basis.In the previous practice,the Procuratorial Office also adopted specific procedures to protect the public interest before the litigation procedure began.The urging of civil prosecution and procuratorial urging writ are the two typical ways.The former is “self innovation” in the condition that the local Procuratorial Office directly filed a public interest litigation but “suspended” by the Supreme People’s Corut and not confirmed by litigation code.It provides a reference for pre-litigation procedure on the behavior nature,applicable condition,applicable scope and applicable,but there is obvious difference in litigation types,legal effect and order of application from pre-litigation procedure.The latter is also an innovative way before the administrative public interest litigation in the field of environmental protection,but it there are some problems,such as the lack of law norms and the blurring of the boundary between it and other behaviors made by the Procuratorial Office,and it has not obtained the formal legal status.Since "Pre-litigation procedure" is a concept of timeliness,so for establishment process of review and summary of "pre-litigation procedure" as a formal system should be placed in the reality of China at present,specifically: first,modernization of China’s system and capacity for governance is the background and the reference to establish the system,that is to say,pre-litigation procedure is the important measure to achieve the goal;second,the way to establish the system is to firstly make norms,to advance from central to local and from part to all,which is also the essential difference from the practice of the Procuratorial Office taken before;third,the problem of "no evidence in law" in pre-litigation procedure is solved,and embodies that the practice achievement of the administrative public interest litigation system is the effect of establishing the system.Four,during the pilot period,there are deficiency in the establishment of the system that is the effectiveness of norms is doubtful,the pilot process is "imperative",and "into the law" clauses are thin and uncoordinated.As a legal procedure,the pre-litigation procedure of administrative public interest litigation consists of three links: initiation,investigation and verification,making and issuing procuratorial suggestions and the transformation of pre-litigation procedure to administrative public interest litigation procedure,which all need to be reviewed again.In the link of initiation,the subject is single,that is the Procuratorial Office.The reason why it is the " Procuratorial Office " is that it has the functional advantage of legal supervision,the ability advantage of balancing the forces of both sides,the position advantage of not involving its own interests,and the dynamic advantage of fully discharge of duties.The reason why it is "single" is that pre-litigation procedure and litigation procedure are cohesive relations and rational: the same effect matching the responsibility of Procuratorial Office,the cohesive relations being helpful for discharging of duties and considerating the efficiency matching preventing public interest.However,there are three disadvantages such as case source limitation,absence of external supervision role and violation of public interests.Secondly,the start-up condition is composed of the behavior requirement,the effect requirement and the causation requirement.The behavior requirement is the illegal act or omission of the administrative organ.In particular,there are two different judgment criteria for administrative omission: the formal criterion holds that administrative omission is the state and situation of negative non-performance of administrative organs and their staff;The substantive criterion holds that,in addition to the administrative agency’s negative complete non-performance or non-performance of its duties is administrative omission,the positive form but the effect of non-performance is also administrative omission.This makes it difficult to judge the behavior elements of omission.From the expression of norm,since "illegal" is only used to define "act",formal standards are adopted to judge omission.From the perspective of practical application,the elements of behavior meet some problems,such as the difficulty in determining the supervised objects caused by the complexity of administrative powers,and the difficulty in judging caused by the diversity of administrative illegal states,etc.,while the judgment of omission also changes from the formal standard determined by norms to the substantive standard in practice.The effect requirement is that the public interest is damaged.From the perspective of the norm,"public interest" is limited to "four fields" and "two types",and a corresponding relationship is formed among them.There are also contradictions in the expression of post-relief and preventive relief in the determination of the start time of the procedure.From the perspective of practical application,the scope of public interest defined by the "field + type" will lead to problems such as limited relief scope,weak practical basis,failure of expected goals and overlapping of public benefit fields.The contradictory expression of start-up time also affects the effect of public relief.The causal relationship is manifested in two aspects: one is the direct causal relationship between the behavior of administrative counterparts and the result of public interests being damaged;The other is the indirect causal relationship between the illegal performance or omission of administrative organs and the damage to public interests.Third,public interest litigation is divided into civil public interest litigation and administrative public interest litigation.We have to face alternative procedure in the condition of limited public benefit field,the same public benefit type and the cause of damage involved.How to choose is a problem that needs to be clarified.The factors to be considered in the selection of pre-litigation procedures include the realization of the purpose of public interest protection,the exploration of the cause of damage and the matching of the ability of the subject.In the link of investigation and verification,the process of investigation and verification has great value to the pre-litigation procedure and even the subsequent litigation procedure.First,investigation and verification is the necessary step in the pre-litigation procedure to confirm the facts of the case and collect relevant evidence,which conforms to the requirements of due process based on facts;Secondly,investigation and verification is the guarantee of making and distributing procuratorial suggestions,which provides support for the supervision relationship of rational consultation between Procuratorial Office and administrative organs.Third,ensuring investigation and verification contributes to the improvement of the supervision capacity of Procuratorial Office.According to the standard basis,there are some provisions on the investigation and verification at the pilot stage and the full implementation stage,including the specific measures of the investigation and verification,the power boundary and the exercise time limit,etc.However,in practice,there are also some problems,such as the lack of standard basis system,the ineffective protection of investigation and verification,the need to improve the procurator’s expertise and the lack of independence of appraisal institutions.In the link of making and issuing procuratorial suggestion,procuratorial suggestion is the way of exercising power with the attribute of supervision explored by Procuratorial Office in practice.Compared with other modes of procuratorial power operation,procuratorial suggestion has obvious flexible effect,which is manifested as power,consultation and prevention.It is of positive significance for the designers to apply the procuratorial suggestion to the pre-litigation procedure.On one hand,the procuratorial suggestion fit with the pre-litigation procedure in terms of the subject,the supervision function,the flexible effectiveness and the similar effect function.On the other hand,there are new developments such as rich in types,expanding function,construction of procedure and fusion of function after procuratorial suggestion used in the pre-litigation procedure.However,it should be recognized that the procuratorial suggest,as a legal form of pre-litigation procedure,still has some shortcomings,such as the lack of supervision caused by the unclear status of norms,the improper content,the damage of modest,and the passive implementation of the follow-up.In the link of the transformation of pre-litigation procedure to administrative public interest litigation procedure,Based on the integrity of the structure of administrative public interest litigation,there are cohesive relations between the pre-litigation procedure and the litigation procedure,they have both the commonness and the relative independence.In terms of commonness,they both focus on the same core of protecting public interests,both play the same role of supervising administrative power,both inherit in content setting,and both depend on their specific application.In terms of relative independence,they both can end the case and both are different in structure.In terms of the connection,there are both formal standards in the noms--whether the administrative organ performs its duties within a time limited and gives a written reply,and substantive standards--whether the public interest is restored.Considering the progressive relation between formal standard and substantive standard,if formal standard is not realized,substantive standard would not be achieved.If the standard of form is met,then whether to prosecute depends on the judgment of the standard of substance.Therefore,the standard of form should be the first step to judge whether the pre-litigation procedure is transformed to the litigation procedure.But in practice,the convergence from pre-litigation to litigation is as follows,during rectification period,only to make administrative act is not enough,required administrative organs to end all the legal procedures to achieve the effect of public interest maintenance,procuratorial organs trusted rectification promises made by administrative organs,many or various forms of supervision have been carried out by procuratorial organs in pre-litigation procedures,etc.Based on the revelation of the theoretical basis of pre-litigation procedure,and based on the summary of the establishment of pre-prosecution procedure in the current context of China,aiming at the problems exposed in the three links of initiation,investigation and verification,and making and issuing procuratorial suggestions and the transformation of pre-litigation procedure to administrative public interest litigation procedure,the pre-litigation procedure should be further improved.In the start link,it must expand the case source to solve the disadvantages causes by single subject: enhancing integration with other Procuratorial Office to achieve "internal tapping",strengthen the relationship with other state organs to improve collaboration and arouse the enthusiasm of social main body to achieve the "External collaboration",these are the source of the specific measures.The difficulty in the application of behavioral elements should be solved by expanding the norms for determining administrative organs’ illegal act,clarifying the judgment standard of typed administrative act and applying the substantive standard of judgment omission cautiously.To be specific,the norms for determining the violation of administrative organs can be extended from the source of formal law to the " the three-dimensional regulations ","power list" and administrative agreements.The standard to judge whether an administrative organ performs its duties by a typed administrative act is not only conducive to the administrative organ performing its duties according to law,but also beneficial to the Procuratorial Office discriminating and judging.As for the criterion of omission,although it has been extended to substantive criteria in practice,its application should be cautious and subject to the following constraints: first,it should be based on the application of formal criteria;second,we should respect the regular of public relief;third,we should notice the connection with litigation procedure.The difficulty of the application of the effective elements should be solved by reconstructing the public benefit identification way,establishing the starting time standard of "possible damage" and establishing the professional judgment mechanism of damage consequence.Specifically,the identification way of public interest should be changed from "field + type" to "general + standard".While defining public interest as "basic and significant interests enjoyed by non-specific majority",the identification standard system consisting of national standard,subject standard,quality standard and fairness standard should be established.The standard of "possible damage" means that the pre-litigation procedure cannot wait for the result public interest damaged to start intervention,but to start the procedure after the detection of signs,to realize the preventive protection of public interest.To establish a professional judgment mechanism of damage consequence,firstly,it is necessary to determine the public benefit scope of professional judgment;The second is to confirm the subject of professional judgment.When alternative procedure happens between the pre-litigation procedure of civil lawsuit and the pre-litigation procedure of administrative lawsuit,priority should be given to the pre-litigation procedure of administrative lawsuit in order to play its initiative characteristics,function to the administrative procedure and remarkable restraining effect.In the link of investigation and verification,the following four aspects can be further improved: first,in “the judicial Interpretation of Public Interest Litigation”should enrich the provisions on the ways in which the power of investigation and verification can be exercised,and the measures in the “Provisions on the Work of The Procuratorial Suggestions” of the Supreme People’s Procuratorates should be incorporated into the judicial interpretation.The second is to strengthen the coercive power of investigation and verification and ensure the effective exercise of power by changing "can be investigated and verified" to "should be investigated and verified" in the norms,setting up responsibility clauses for the uncooperative objects of investigation and verification,and empowering the Procuratorial Offices with appropriate coercive measures.The third is to improve the professional level of case handling by improving the ability of case handling,optimizing the internal organization setting in the field of public interest and introducing expert opinions.Fourth,expand the scope of application of the appraisal institutions set up by the Procuratorial Office,so as to solve the problems of independence and impartiality existing in the Procuratorial Office that need to issue appraisal opinions with the help of the administrative organs and the socialized appraisal institutions.In link of issuing the procuratorial suggestions,it can be further improved from the following three aspects: first,it is necessary to realize the externality of“procuratorial suggestion rule”---regarding it as a judicial interpretation and into the scope of the normative documents which the standing committee of the National People’s Congress should record and review to meet the needs of the procuratorial suggestion applicable scene development,to meet the needs of supervision the rule of procuratorial suggest and to meet the needs of enhancing its binding.The second is to strengthen the follow-up mechanism for the implementation of procuratorial suggestion,and further clarify that during the period of rectification,administrative organs have the obligation to report the process of performance of their duties to the Procuratorial Office and the Procuratorial Office have the power to take timely measures.The third is to improve the structure and content of the procuratorial suggestion from the following aspects: correcting the procedural basis of the making and issuing of the procuratorial suggestion,arranging the details of the procuratorial suggestion properly,forming the content of the suggestion at different levels and adding the judgment of the expected effect.In the link of the transformation of pre-litigation procedure to administrative public interest litigation procedure,it is necessary to define the legal status of substantive standards,add elastic space during rectification period and the application times and forms of pre-litigation procedure should be restricted.Litigation-oriented reform is a measure to perfect the form of pre-litigation procedure,and it is to introduce the characteristics and elements of litigation procedure into pre-litigation procedure.The main reasons for the choice of litigation transformation are: litigation procedure is an important reference of law procedure,the need to continue to play the function and role of pre-litigation procedure,the solution of problems in the practice of pre-litigation procedure and the convenience provided by the mode of "pre-litigation + litigation".The litigation-oriented reform should be constrained by the following: it can’t be similar with the litigation procedure in form,can’t destroy the principle of judical final settlement can’t violate the understanding and regular of solving case disputes,and can’t change the characteristics of litigation procedure into the disadvantages of pre-litigation procedure.The measures can be taken that include: improving the way of handling cases that is too administrative and reforming judicature;not only enhancing the independence and autonomy of prosecutors in handling cases,but clarifying the responsibilities;that procuratorial suggestion should be open through the media can facilitate the supervision of procuratorial power to enhance the transparency.In handling cases,the basic role of facts and evidence should be strengthened,the links of evidence exchange and cross-examination should be established,and more participants should be introduced without breaking the existing structure of parties.Meanwhile,the achievements of litigation-oriented reform should be fixed into the norms,so as to standardize the procedures of handling cases and enhance impartiality.Litigation-oriented reform should not only pay attention to the procedure pre-litigation,but also focus on the reform of the rectification process afterwards,fully play the coordinating role of Procuratorial Office,and enhance the effectiveness of public interest protection. |
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