Civil Public Interest Litigation And Administrative Public Interest Litigation Study On Handling Mechanism Of Concurrence And Cooperation Cases

At present,China’s public interest litigation legislation adopts the dual mode of civil public interest litigation and administrative public interest litigation parallel,in practice triggered civil public interest litigation and administrative public interest litigation concurrence cases（hereinafter referred to as public interest "two lawsuits" concurrence cases）.Public welfare "two v." competition case refers to the civil public interest litigation and administrative public interest litigation of two kinds of litigation case scope overlap social domains such as environmental protection,protection of the rights and interests of consumers,the existing civil public interest infringement,and involved in an administrative organ fails to perform the statutory duties,in accordance with the provisions of the civil procedure law and administrative procedure law,The subject with legal right to Sue can file civil public interest litigation or administrative public interest litigation,resulting in overlapping cases in the application of the two types of litigation.Public welfare "two lawsuits" co-operative cases have the characteristics of public welfare,civil cross,legal norms co-operative.The competition of legal norms also leads to confusion in the application of the three litigation modes of administrative public interest litigation,civil public interest litigation and administrative incidental civil public interest litigation in judicial practice,and there are problems such as repeated evaluation,unclear standards for the use of procuratorial suggestions,conflict of jurisdiction,risk of repeated litigation and loss of judicial value of public interest litigation.In order to solve the above problem,this paper uses the methods of case analysis,literature research,comparative analysis,use economic and legal benefit principle,procuratorial tolerance principle as well as the relevant theories of civil responsibility and administrative responsibility,by looking at other country public welfare lawsuit legislation mode,the theory of liability concurrence and civil and administrative cross cases processing experience,in order to realize the litigation efficiency,for the purpose of optimal Legislative model of the current public interest litigation in our country and the judicial system,using the end administrative remedy principle(the priority principle of administrative public interest litigation,civil public interest litigation complementary principle and administrative incidental civil public interest litigation limitation principle,to build China’s public welfare "two v." phenomenon in case the processing mechanism of legislative proposals,sought to help optimize the development of the public welfare lawsuit system.The main content of this paper roughly includes the following four parts:The first chapter defines the connotation of the public welfare "two lawsuits" concurring cases discussed in this paper,clarifies the constitutive elements,characteristics and causes,and puts forward the problems existing in the entity level and procedure level of the public welfare "two lawsuits" concurring cases in judicial practice by case analysis method.The second chapter analyzes the basic theory of the handling mechanism of public welfare "two suits" concurring cases.Combined with the no.29 guiding case of the Supreme People’s Procuratorate,this paper analyzes the handling mode of the cross-case of THE BANK of China,and holds that the mode of collateral litigation is not a necessary option for the "two suits" co-litigating cases of public welfare.It also analyzes the difference and connection between administrative liability and civil liability,the value of the principle of litigation economy and the principle of litigation benefit,and the internal requirements of the principle of prosecutorial restraint,laying a legal basis for this paper to put forward the principle of exhaustion of administrative relief and relevant legislative proposals.The third chapter makes a comparative analysis of relevant systems and jurisprudence outside China.Focusing on the analysis of two legal system on behalf of the state public interest litigation legislation mode,the experience to handle civil and administrative cross cases and civil and administrative liability concurrence of academic point of view,refined "end administrative remedy principle" and can be used for reference and the combination of public interest litigation concurrence of liability theory,for the next step to build the cases of public welfare "two v." competition mechanism provides a good practical experience and theoretical support.The fourth chapter is about improving the public welfare "two lawsuits" concurring case handling mechanism.On the basis of the above theoretical analysis and system reference,the paper puts forward three basic principles to deal with the "two suits" concurred cases,which are the principle of exhaustion of administrative relief（priority principle of administrative public interest litigation）,the supplementary principle of civil public interest litigation and the limitation principle of administrative incidental civil public interest litigation.At the same time,put forward the perfect public welfare case processing mechanism of "two v." phenomenon in five Suggestions,start up sequence is to determine the procedure and conditions,clear the jurisdiction of the provisions of the administrative incidental civil public interest litigation,guarantee the procuratorial organ the priority of public prosecution right,to the court to translate a program cohabitancy rights and strengthen the court civil and administrative responsibility complementary requirements.