Research On The Judgment Of Administrative Omission In Environmental Administrative Public Interest Litigation

The environmental public interest is the environmental interest which is shared by the majority of people,and it is a kind of integral interest.The traditional administrative litigation takes the protection of individual interests and the supervision of administrative organizations as its main meaning.And it seems difficult to meet the demand of protecting the environmental public interest.In the face of administrative omission which is covert and has bad effects on the credibility of administrative organs,the legislation and theory of traditional administrative litigation are ineffective in urging the administrative organs to perform their duties of protecting the public interests of environment.The legislation and theory of traditional administrative litigation lacks clear stipulation on the recognition and investigation standard of administrative omission,which leads to the courts’ inconformity on the judgment of administrative omission in judicial practice.Under the influence of principle of justice austerity,traditional legislation and theory emphasize the respect for the administrative discretion.Judicial practices also focus on review of formal legitimacy and lack rationality review.The courts fully respect for the premier decision of administrative organs and tend to make procedural referees.No matter in the level of institution function or in the level of judicial practice,it is difficult for the traditional administrative omission litigation to urge the administrative organs to perform their duties of protecting the public interests of the environment.Therefore,in the environmental administrative public interest litigation brought by the procuratorates,the judicial interpretation makes different norms on the composition of administrative omission and judges tend to adopt higher examination standards,which are reflected in the investigation of the constituent elements of administrative omission and the extensive use of substantive judgment.Specifically,the cases of Jiangsu Province and Guizhou Province reflect the expansion in sources of obligation,covering a large number of general and discretionary obligations;using the result of performance to infer the failure to perform obligations;the neglect of the possibility of administrative action and defense of administrative agencies.The judicial judgments reflect that the environmental administrative public interest litigation has played a great role in urging the administrative organs to perform their duties of protecting the public interests of environment.It also reflects the respect for the judgment of procuratorates and the deep intervention of the judicial power in the executive power.The new breakthrough of environmental administrative public interest litigation on the judicial judgment of administrative omission is closely related to the political promotion and strict hierarchical control in the process of carrying out public interest litigation in China.