| In administrative public interest litigation,the court’s determination of the administrative organ’s failure to perform its statutory duties is of great significance and is a prerequisite and basis for the procuratorate to obtain the court’s support.The definition of non-performance of statutory duties is not clear in the legislation,and in judicial practice,there is a mix of non-performance of statutory duties,non-performance of duties according to law,and administrative inaction.In the current judicial decision of administrative public interest litigation,the court considers the failure of administrative organs to perform their statutory duties in terms of three review elements,performance of duties,performance procedures and performance effects,and the degree and tendency of the review elements vary in different cases.The court has different criteria for determining the non-performance of statutory duties by administrative organs in cases where the administrative organ loses a lawsuit and cases where the prosecutor withdraws the lawsuit or dismisses the lawsuit.However,in judicial practice,the court’s result-oriented criteria put forward too harsh requirements for the administrative organs,while the process of determination is not separated from the prosecutorial recommendations,which prevents the formation of a healthy interaction between the administrative and judicial powers.In addition,in some cases,the court ignores the public interest.The court should no longer be constrained by the recommendation of the prosecutor,but should make the determination from the three criteria of statutory,stage and refinement,so as to achieve a comprehensive review of the administrative organs’ performance of their duties.At the same time,in the process of judicial determination,the court should always keep the public interest in mind,reasonably resolve the public interest conflict,and take into account the maintenance of public interest. |
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