Research On The Pre-litigation Procedure Of Environmental Administrative Public Interest Litigation From The Perspective Of Objective Litigation

The amendment of the administrative procedure law in 2017 marks the formal establishment of the administrative public interest litigation at the legislative level.From the early pilot stage to the full implementation of the administrative public interest litigation,it shows that the procuratorial organs have achieved remarkable results in filing administrative public interest litigation.According to the administrative public interest litigation filed by various regions,most of them are environmental administrative public interest litigation,and in the environmental administrative public interest litigation filed by procuratorial organs,the pre-litigation procedure,as an innovative litigation rule,has played a very important role and achieved remarkable results.Therefore,it is of practical significance to study the pre-litigation procedure.In addition to the introduction,this paper has four parts.The first part is the development of administrative litigation type and the establishment of environmental administrative public interest litigation.As an imported product,China's administrative litigation is completely completed by construction.Both the macro target orientation,litigation type and specific system structure are all borrowed doctrine.Therefore,the administrative procedure law of our country has great limitation.In this regard,2014 ushered in the first overhaul,2017 has been partially revised.However,the revision of the law focuses more on specific institutional problems,focuses on the response to the prominent problems in reality,and lacks a deep understanding of the macro-level structure of administrative litigation.In the author's opinion,as an important system that cannot be replaced in the modern governance of the country,administrative procedure law should be studied from the macro level and the idea of administrative litigation type should be introduced.Restricted by the division of rights in the constitutional system,the most likely breakthrough area for the establishment of objective litigation in China's administrative litigation is the administrative public interest litigation.In contrast,the current administrative procedure law of China formally establishes environmental administrative public interest litigation at the legislative level in 2017,which shows the characteristics of objectification in many aspects.The second part is the evolution and function orientation of the pre-litigation procedure of environmental administrative public interest litigation from the perspective of objective litigation.Civil law countries divide administrative litigation into subjective litigation and objective litigation according to the classification criteria of objective and functional orientation.The function of objective litigation is to protect the objective legal order from infringement and pursue the objective order value.Subjective litigation aims at relieving individuals and safeguarding their legitimate rights and interests,and emphasizes the protection of subjective rights and interests.Pre-litigation procedure,as a necessary and pre-process of environmental administrative public interest litigation,has gone through a period of germination,start-up,establishment and improvement.It is constructed in the direction of objective litigation and has the functions of reasonable distribution of administrative power and judicial power,effective conservation of judicial resources and self-correction of administrative organs.The third part is the review of the pre-litigation procedure of environmental administrative public interest litigation from the perspective of objective litigation.At present,China's environmental administrative public interest litigation is still in the early stage,the pre-litigation procedure is an innovative litigation rules,although in the pilot period summed up a lot of valuable experience,and the current stage of the pre-litigation procedure is in accordance with the overall construction of the objective litigation,but through its objectificationWe should see that the pre-litigation procedure is not completely established in accordance with the objective litigation mode of litigation rules,which not only restricts the implementation of administrative litigation,but also to a certain extent can not make the pre-litigation procedure play its due function.Such as deviating from independent values;The content of the proposal is not clear;The standards for administrative organs to perform their duties are not clear;The term of office of the procuratorial proposal needs to be considered and so on.The fourth part is the detailed construction of the pre-litigation procedure of environmental administrative public interest litigation from the perspective of objective litigation.This paper summarizes the relevant experience of the pre-litigation procedure in the pilot,constructs the pre-litigation procedure with the objective characteristics and carries on the fine construction to it.First,the purpose of the pre-litigation procedure should be clarified.Secondly,we should pay attention to the construction of specific litigation rules of pre-litigation procedure.First: to demonstrate the independent value of pre-litigation procedure.Second,we should standardize the content of procuratorial proposals,specify the damage to public interests in the procuratorial proposals,and identify administrative violations together to form the legitimate basis for initiating public interest litigation;In the concrete procuratorial proposals,the contents of the procuratorial proposals may not be too detailed.Third,the standards for the performance of administrative organs should be clarified.Administrative organs should not only perform their procedural duties,but also consider the time limit,diligence,whether they have exhausted all legal means and the actual effect of performing their duties.The 4th: the deadline that sets procuratorial proposal reasonably,on the one hand on the basis of affirming general deadline of two months on the one hand,want to set certain flexibility deadline on the other hand.