| When China’s Administrative Litigation Law of the People’s Republic of China was amended in June 2017,the administrative public interest litigation system was clarified from a macro perspective,and the procuratorate has since been able to initiate administrative public interest litigation cases as an administrative litigation participant.From the legal provisions,the concept of administrative organs not performing their duties in accordance with the law is distinctly different from the illegal exercise of their powers and administrative inaction,and should not be confused with each other.The determination of whether an administrative organ has fulfilled its statutory duties in a particular area is a necessary step for the procuratorate to take in the process of bringing an administrative public interest litigation to the people’s courts,from the procuratorate’s own procuratorial procedures to the court proceedings,and is a prerequisite for the procuratorate to be able to bring a corresponding lawsuit to the people’s courts to defend the public interest of the state and society.However,there is still no clear legal definition of "failure to perform its duties in accordance with the law",and there has been a lot of debate in the judicial practice of administrative public interest litigation,which has not yet established a relatively sound judgment scale.Therefore,it is necessary and important to study the criteria for determining whether an administrative organ has failed to perform its duties in accordance with the law.The administrative organ,the procuratorate and the court,based on their respective functions,differ greatly on the criteria for determining whether the administrative organ has performed its duties in accordance with the law.The administrative authorities usually adopt the conduct standard,while the procuratorate adopts the result standard.From the current adjudication documents,the courts tend to adopt the result standard,but in some cases they also show a tendency to adopt the comprehensive standard.The behavioural standard tends to result in a dangerous state of persistence and potential threat of violations that cannot be eliminated;the outcome standard is not in line with the original purpose of the design of the pre-trial procedure,nor is it in line with the purpose of bringing a lawsuit.The courts’ tendency in practice to adopt an approach based on outcome criteria places too much emphasis on the protection of the public interest of the state and society,and tends to ignore the positive actions that may be taken by administrative bodies in the performance of their functions,which has a greater negative impact on administrative bodies,goes against the regularity of administrative management,and is in essence inconsistent with the original intent of the design of the public interest litigation system.However,from an evidentiary point of view,the court’s current adoption of such a standard is not entirely the subjective will of the court or judge,but naturally presents a result-oriented identification standard based on the performance of the procuratorate and the administrative organ in terms of litigation and defence opinions and the presentation of evidence.In the case where the administrative organ can fully adduce evidence,the court will have more room to apply the comprehensive standard.The article adopts an empirical analysis method to summarize the determination standards of the procuratorate from the prosecution opinion,the determination standards of the administrative organ from the defense opinion,and the determination standards of the court from the reasoning part of the judgment document,so as to derive the determination standards adopted by each subject for the administrative organ not performing its duties according to law and the underlying reasons for the differences,and build a comprehensive determination standard for the administrative organ performing its duties according to law in administrative public interest litigation.The court’s decision is based on the criteria used by the administrative organs to perform their duties in accordance with the law and the underlying reasons for the differences. |
