Study On The Pre-litigation Procedure Of Environmental Adminstrative Public Interest Litigation Initiated By Procuratorial Organs

Public interest litigation can be divided into administrative public interest litigation and civil public interest litigation according to the objects of litigation or the nature of the applicable procedural law.According to the data of two years' pilot work of the supreme people's procuratorate and the actual situation,in the public interest litigation cases handled by the procuratorial organs,administrative public interest litigation cases account for the vast majority,while civil public interest litigation cases account for a small proportion.The specific types of cases are mainly concentrated in the four fields of "protection of ecological environment and resources,food and drug safety,protection of state-owned property and grant of state-owned land use right" stipulated in the fourth paragraph of article 25 of the administrative procedure law,the number of cases in the field of ecological environment and resource protection is the largest,however the procuratorial organ is the only one who has the qualification to bring administrative public interest litigation.Therefore,it is of great significance to establish a mature public interest litigation system and even a public interest litigation law in China to study relevant issues of the public interest litigation system of environmental administration initiated by procuratorial organs.The pre-litigation procedure of public interest litigation initiated by the procuratorial organ refers to the pre-litigation procedure that the procuratorial organ must perform before the civil and administrative public interest litigation is initiated to the court,it is necessary and mode specific.The pre-litigation procedure,as a procedural restriction system has shown great value in the whole pilot work,the essence of administrative public interest litigation initiated by the procuratorial organ is to supervise the illegal behaviors that damage the national interests and social public interests by means of administrative litigation,it is likely to constitute state intervention in civil and economic activities,therefore,we should follow the principle of necessity stipulated in the administrative law,avoid improper intervention and reflect the modesty of prosecutorial power.Compared with the public interest litigation in foreign countries,its main purpose is to prevent citizens from abusing the litigation,China's pre-litigation procedure is mainly for the purpose of saving judicial resources,giving play to thefunctions of administrative organs to protect the environment,and properly restricting the public interest litigation right of procuratorial organs.However,some problems have emerged in the practice of pre-litigation procedure: for example,the feasibility of procuratorial advice is not strong;The content of the proposal is too broad which is not conducive to the performance of administrative organs or self-correction;The prosecution suggestion lacks the legal basis;It is not clear whether the administrative organs should correct mistakes or perform their duties.Firstly,the author expounds the research status of environmental administrative public prosecution at home and abroad to understand the theoretical and institutional achievements of different legal system countries in this field.Secondly,it briefly expounds the basic theoretical issues of the pre-litigation procedure of environmental administrative public prosecution,grasps the concept,characteristics,nature and establishment value of the pre-litigation procedure,etc.,in order to clarify the thinking for the further research.Thirdly,through the analysis of the relevant cases,the author summarizes the specific situations in which the administrative organs do not perform their duties according to the law,and then analyzes the problems that the procuratorial organs may have in the pre-litigation procedure of environmental administrative public prosecution.After that,combined with the investigation and analysis of the environmental administrative public interest litigation system in some representative countries outside the region,the paper summarizes the enlightenment of improving the pre-litigation procedure of environmental administrative public interest litigation filed by the procuratorial organs in China.Finally,using the empirical research method and the system comparison method,this paper puts forward some Suggestions to improve the pre-litigation procedure.It is necessary to study the procedure of administrative public prosecution carefully.At the same time,combined with the relevant provisions on the pre-litigation procedure in law and the trial situation of the procuratorial organs,the paper summarizes the current situation and existing problems of the pre-litigation procedure of administrative public prosecution.Finally,by analyzing the selected cases and referring to foreign laws and regulations on environmental public interest litigation,some Suggestions are put forward for the improvement of pre-litigation procedures.It isexpected to draw some specific conclusions on improving the legal basis,system content and implementation procedure of pre-litigation procedure.