Research On Judicial Determination Of Administrative Omission In Environmental Administrative Public Interest Litigation

With the increasingly serious environmental problems,the effective path to alleviate environmental pressure is actively explored in China.The establishment of environmental administrative public interest litigation system is one of them.The system of environmental administrative public interest litigation has played a positive role in safeguarding the public interest of the environment in practice since the project was launched.From the perspective of practice,the main cases brought by procuratorial organs for environmental administrative public interest litigation are administrative organs’ illegal exercise of power and administrative inaction.Among them,the number of lawsuits filed on the grounds of administrative omission accounts for the vast majority.At the same time,administrative omission is characterized by complexity and concealment.Based on the above situation,how to identify administrative omission in environmental administrative public interest litigation has become the focus of attention in theory and practice.Due to the particularity of environmental affairs,the litigation mechanism of environmental administrative public interest litigation is different from that of general administrative litigation.Therefore,the identification of administrative omission in this field cannot be simply transplanted into the "three elements theory" of general administrative litigation.Moreover,in order to guide judicial practice,it is necessary to conduct special research on the identification of administrative omission in environmental administrative public interest litigation.At present,China has made a preliminary exploration in the theory of environmental public interest litigation,and there are many cases in judicial practice.This paper provides a solid theoretical guidance and rich practical experience for an all-round analysis of the criterion of affirmation of administrative omission in environmental public interest litigation.Therefore,this paper takes the actual cases of environmental administrative public interest litigation as the starting point,and concludes the judgment path of the court on the "three elements" of administrative omission in environmental public interest litigation,namely,as the source of obligation,as the possibility of obligation,and whether to fully fulfill the obligation,so as to present the current status of judicial recognition of administrative omission in environmental public interest litigation.Through the analysis of the research samples,the current situation of judicial review,it is found that there are some controversial issues in the judgment of the court,such as unclear provisions on the obligation of procuratorial advice to reply,the lack of qualification examination of the defendant leads to the uncertainty as the source of the obligation,the one-sided examination of the possibility of fulfilling the obligation and the extensive use of the result standard for the investigation of the effect of the full performance of the duty.In order to relieve the dilemma of administrative omission in the judicial practice of environmental administrative public interest litigation,this paper puts forward some optimization suggestions.First,it should be clear that the procuratorial suggestion reply is excluded from the scope of obligation,and the qualification examination of the defendant should be added to further limit the scope of the subject of obligation.Secondly,it comprehensively considers the defense reasons of administrative organs,such as clarifying the scope of responsibilities among administrative organs,considering the convergence of execution responsibility,and clarifying the objective factors as the exemption reasons.Third,the introduction of composite standards to the overall performance of the effect to be identified.