Determination Of Non-performance Of Statutory Duties In The Pre-litigation Procedure Of Environmental Administrative Public Interest Litigation

Environmental administrative public interest litigation,as a special administrative litigation,was formally established in the Administrative Procedure Law of the People’s Republic of China revised in 2017 after pilot implementation.The system of environmental administrative public interest litigation refers to that the procuratorial organ may bring an environmental administrative public interest lawsuit if it finds that the administrative organ responsible for supervision has "illegally exercised its power or failed to act" in the environmental protection work.This law stipulates that environmental administrative public interest litigation can be divided into two stages: pre-litigation procedure and litigation procedure.Pre-litigation procedure as a necessary procedure,only through the pre-litigation procedure,the case can enter the proceedings.The failure of the administrative organ to perform its duties in accordance with the law is the connection point of two procedures.The procuratorial organ can only file a lawsuit when the administrative organ still fails to perform its duties in accordance with the law,so as to end the pre-litigation procedure and enter the litigation procedure.Therefore,it is of great significance for the practice of environmental administrative public interest litigation system to identify the failure to perform duties according to law.After the pre-litigation procedure of environmental administrative public interest litigation was stipulated in the Administrative Procedure Law,the court responded to how to judge the administrative organs not performing their duties according to law through individual cases.Through sorting out typical cases,it can be found that when reviewing whether an administrative organ performs its duties according to law,the court mainly focuses on three aspects: the recognition of the legal duties of the administrative organ,the period of failure to perform duties according to law,and the standard of failure to perform duties according to law.Among them,the most important and most likely to cause controversy in practice is the standard of administrative organs not performing their duties according to law,which is also the main factor considered by the court in the trial of cases.However,neither the newly revised Administrative Procedure Law nor the subsequent judicial interpretations have clearly stipulated the sources and standards of obligations of administrative organs not performing their statutory duties in environmental administrative public interest litigation.The time limit for an administrative organ to fail to perform its statutory duties is only set at two months.Therefore,this paper mainly studies the identification of administrative organs performing their duties in accordance with the law in the pre-lawsuit procedure through case studies.First of all,for the identification of legal duties,environmental administrative public interest litigation,as a special type of administrative litigation,not only absorbs the sources of legal duties of administrative organs in the traditional administrative procedure law,but also according to its characteristics,The scope of statutory duties will be extended to the implementation of administrative affairs and more conducive to safeguarding the state and social public interests.Secondly,considering the ecological law and departmental cooperation,the time limit for not performing duties in accordance with the law can be divided into two categories,that is,the general time limit for performing duties is two months.Flexible periods of performance may apply to complex environmental issues.Last for one of the most controversial not to perform their duties according to the standard,through the analysis of the court verdict,the administrative organ,the procuratorial advice after they receive is still not to perform their duties according to the standard are typed,mainly analyzes the five types of standard,behavior standard,end regulatory measures,results,predictability and authority standard,It is more reasonable to replace the duality standard of action and result with diversified identification standard,and it is also more in line with the purpose of setting up the pre-lawsuit procedure of environmental administrative public interest litigation.