The System Contraction Of China’s Procuratorial Organs Participate In Administrative Public Interest Litigation

Instituting administrative public interest litigation by procuratorial organs plays an important role in the perfection of administrative litigation, it is important for our nation to improve the current system of supervision, to promote the development of the theory of administrative proceedings and fill gaps in public interest litigation, to resolve social conflicts, to protect national interests and public service.The current status of China’s administrative public interest litigation is not optimistic, there are some issues that have a serious impaction on the enthusiasm of China’s procuratorial organs to participate in administrative public interest litigation, such as:lack of enthusiasm, undefined role,unpeaceful litigation rights, lack of specific procedures. In recent years, with the growing number of infringement cases of administrative public interest, the public is also have an urgent need for our government to build a comprehensive public interest litigation. The sustainable development of the theory of litigation right and the interests of litigation provides a theoretical support for administrative public interest litigation by procuratorial organs, moreover, domestic administrative public interest litigation are constantly developing in the theory and practice. the advanced foreign experience in administrative public interest litigation and China’s procuratorial organs of the legal nature and their own advantages also provide a realistic way.A complete of programs is the basis for administrative public interest litigation by procuratorial organs, the programs should pay more attention on the following aspects:first, the role:the theory of the role of the prosecution in administrative public interest litigation mainly have the theory of plaintiff qualification, the theory of public service representative, the theory of prosecutor, the theory of legal supervision, the theory of the agent of litigation, as well as the theory of a double identity, above six hypothesis are reasonable, but it also has shortcomings. in this paper, the procuratorial organs positioned in the legal supervisor and public protection role in the public administrative proceedings. because the procuratorial organs don’t have any right which it possess in ordinary litigation in administrative public interest litigation. so procuratorial organs should not be equal to the plaintiff in administrative public interest litigation, and in view of the legal nature of the procuratorial organs, that China’s legal organs is a legal supervision organs, prosecutors involved in administrative public interest litigation should be seen as one of the exercise of supervision, at this time, the prosecutorial role should be as a legal supervisor, in addition, due to difference of China’s procuratorial organs in nature and relationship with the West procuratorial organs. we position the role of the prosecution in administrative public interest litigation to the public representative, which is different from the West, and so avoiding the concept limitations in administrative public interest litigation, Since the concept is too absolute. second, the way of selection. combine the relevant provisions of criminal Procedure Law of the People’s Republic of China and Civil Procedure Law of the People’s Republic of China, the main way for procuratorial organs to participate in the proceedings have Proceedings and Support prosecution and supervise prosecution, in this paper, the three mode is assimilate into administrative public interest litigation and is able to adapt the need of litigation. third, the scope of the case.More academic discussion focus on the scope of administrative public interest litigation, mostly concentrated on the abstract administrative acts, specific and factual behavior, the paper argues that the scope of administrative public interest litigation should be restricted explicitly, we should not be vague and undefined, at this stage, we should not be included the abstract administrative acts in administrative proceedings, and should be take progressive manner to included in the abstract administrative, in the specific administrative act, I propose to take the enumerated legislative provisions to take some typical cases into the administrative public interest litigation.For instance,"the loss of state assets case, the case of environmental pollution, disturbing social order of market economy cases and administrative cases against the public interest ".Fourth, in the aspect of pre-litigation procedure, the prosecution should be based on the different sources of the case to select pre-litigation procedure. this paper argues that the pre-litigation should be divided into two classes:First, when illegal administrative is sued, the procuratorial organs found illegal administrative acts harm public welfare proceedings, the procuratorial organs should do an unlawful submissions to the Administrative organ, and urge them within a reasonable time to correct the illegal administrative act, if the administrative organ refuses to correct or believe the administrative act lawful, the procuratorial organs should sue for specific administrative act. The second class, when the procuratorial organs needs to lift the public administrative proceedings is basis on report of individual citizens or social organization, the prosecution should be informed of individual citizens or social organizations to apply for administrative reconsideration to the administrative organ that make illegal administrative acts, if the administrative organ within the time limit does not give a reasonable explanation or relative person is not satisfied with the reconsideration decision that make by the administrative organs, at this time, they can apply to administrative public interest litigation. fifth, the burden of proof, undertaking burden of proof have the two views, one view think that the burden of proof should be consistent with the existing administrative procedural law rules, the prosecution provides initial burden of proof, sued the specific administrative organs bear the legal burden of proof to prove its administrative act; another view is that the prosecution in administrative public interest litigation is no longer the weakness of the ordinary administrative proceedings, it has enough public authority to contend with the executive power, it should be in accordance with traditional litigation rules of evidence, that is, who advocates, who provides the burden of proof, the burden of proof born by the prosecution. I agree with the former point of view. Sixth, litigation rights, the right to protest and withdrawal rights should give the procuratorial organs, the right to counterclaim and conciliation and mediation should not be given to procuratorial organs. Seventh, the consequences of litigation, if the prosecution loses in public administrative proceedings, you should not let procuratorial organs adverse legal consequences, if the prosecution successes, the court should be recognized that judgment the respondent administrative act is illegal, the related issue of compensation needs a new civil action by plaintiff who had been violated.