Research On The Pilot Project Of Administrative Public Interest Procedure By Procuratorial Organs

Since the Administrative Procedure Law did not provide administrative public interest litigation,on July 1,2015,the Standing Committee of the National People’s Congress passed the Decision on Authorizing the Supreme People’s Procuratorate to Conduct Pilot Public Interest Litigation in Some Areas(hereinafter referred to as the "authorization decision").After a year of pilot,this paper mainly in three parts of the prosecution to bring administrative public interest litigation pilot practice problems in the theoretical study,and in compliance with existing laws on the basis of the relevant recommendations for improvement.The first part mainly discusses the present situation of the administrative public interest litigation filed by the procuratorial organ.From a year of pilot practice,although the case of public interest litigation clues a lot,but not much litigation,but also concentrated in the field of environmental protection,the relevant controversial issues are not discussed and judged.The main problems of the pilot are as follows: First,the functions of the prosecution and the legal status of unknown issues,there is a criminal prosecution from the positioning to build the positioning of administrative public interest litigation;the second is the legitimacy of pilot innovation issues,Supreme Procuratorate issued The administrative organs and their staff should cooperate with the right to appeal instead of the right to appeal the lack of legal basis for the provisions;Third,the narrow scope of the case,the case focused on the prosecution of the right to prosecute the administrative organs and their staff,In the field of environmental protection;Fourth,the problem of procedural operation,such as the administrative organs refused to prosecute the results of the investigation and evidence collection how to bear the right to appeal to replace the right to appeal and trial supervision procedures confuse the right to protest the problem.The second part of the prosecution of the administrative public interest litigation system for legal analysis,the Anglo-American law and civil law system and the prosecution of the nature of public interest litigation system to carry out a review of its administrative public interest litigation of the plaintiff qualification is almost no limit.The theoretical basis of the procuratorial power in China is mainly legal supervision theory,public interest litigation trust theory and litigation theory.The third part puts forward some suggestions on the administrative public interest litigation system of the procuratorial organs according to the current laws such as Administrative Procedure.Law and Authorization Decision.The nature of procuratorial power in China is the right of legal supervision.The function of the procuratorial organ in the administrative public interest litigation is the legal supervisor,which supervises the administrative organ according to law before the prosecution.After the judgment comes into effect,the procuratorate has the right to protest the trial supervision procedure.But in the proceedings,the prosecution status is the plaintiff in administrative proceedings,or public interest litigation plaintiff.Public interest damage is the premise of the scope of the case,but to some common,key damage to national interests,social public interest in the area of administrative violations to be enumerated.In addition,some suggestions are put forward on the procedure of pre-trial supervision,the source of the case,the investigation and evidence collection,the burden of proof and the consequences of the litigation.