Research On The Improvement Of The Preliminary Procedures Of Environmental Administrative Public Welfare Litigation

Since the Supreme People’s Procuratorate issued the Pilot Program for Reform of Public Interest Litigation by Prosecutors(hereinafter referred to as the pilot program),the connotation of pre-litigation procedures has gradually converged towards the procuratorate organs and public interest litigation.The Supreme People’s Procuratorate’s report pointed out that in recent years,most cases have been resolved in the pre-litigation process,which shows the important role played by the pre-litigation process.The pre-litigation procedures of environmental administrative public interest litigation are based on legal supervision theory,administrative self-control theory and judicial restraint theory.Legal supervision theory leads the supervision of procuratorial organs to aim to the administrative power,and divides the boundaries between administrative power and judicial power and expresses non-intrusive respect;the theory of administrative self-control means that the forces from within the administration are professional and active,and the protection of environmental public welfare is more timely,effective and economical;the theory of judicial restraint requires that the prelitigation procedures should be based on respecting and protecting the rights of citizens.And on the other hand,it is necessary to urge administrative self-correction not to excessively interfere with administrative power.The pre-litigation procedure has the functions of saving judicial costs,maintaining restraint,buffering relieving the environmental public interests promptly,as well as the supervision.These functions are very important.However,the pre-litigation procedure has exposed many problems in practice,which greatly reduces its functions.First of all,the pre-litigation procedure is faced with the problem of unclear judgments on the performance standards of administrative agencies,unclear expressions in legal documents,and some substantive issues are often difficult to define.There is no conclusion on whether to adopt behavior-oriented or result-oriented.Secondly,the prelitigation procedure faces the issue of unclear legal effect,whether it has legal coercive force.There are also questions about the forms of expression of both the strength of this coercive force and the manifestation of this coercive force.Meanwhile,due to the unclear legal effect leading to unclear issues by the replying the existence of administrative agency pre-litigation procedures.There is still a discussion on whether denied responding to procuratorate recommendations constitutes "administrative omission".In the final pre-litigation procedure,the independence of procuratorate staff and procuratorate recommendations is unclear.The specific undertaker of the case does not have the power to handle the case independently,the procuratorate recommendations lack of rigidity,and the procuratorate recommendations sent by the procuratorate agency are vulnerable to inappropriate intervene from the inconvenience of the procuratorate system and administrative forces.The original cause is the unclear positioning of the legal supervision function of the procuratorate organ in the pre-litigation procedure.First of all,procuratorate organs are confronted with the dispute between “environmental public interest protectors” and“environmental administrative power supervisors”.In the practice of public interest litigation,the procuratorate organs have found that it is more difficult to be“environmental administrative supervisors” than “environmental public interest protectors” and are willing to positioning itself as a "protector",confuses the order of "supervisor" and "protector".Secondly,the procuratorate organs need to clarify the dispute over the cover of the procuratorate power.The nature of the legal supervision power of the procuratorate power has originally been discussed,but our country needs the supervision function of the procuratorate agency,and the source of the adverse consequences of the administrative agency not responding to procuratorate recommendations might come from judicial inaction.Third,the pre-litigation procedure is faced with a controversy over the compulsory force of procuratorate recommendations.On the one hand,procuratorate l recommendations are relatively unprofessional,and on the other hand,it needs to be clarified that procuratorate recommendations are a formal method of legal supervision and implementation.Finally,it is necessary to clarify the relationship between procuratorate power and administrative power and their orders.In our country,due to the intersection of procuratorate power and administrative power,there are complicated situations in practice.However,procuratorate organs should strictly follow the first judgment power and judicial restraint theory,and realize the shifting the focus of environmental supervision does not mean that procuratorate power can expand and oppress its executive power.Therefore,basing on the explicating that the procuratorate agency should be the supervisor of environmental administrative power,the pre-litigation procedure has not exceeded the cover of the procuratorate power,the procuratorate recommendations are compulsory until it enters the lawsuit,makes the administrative power cautiously selfexamine and the procuratorate power supervises the administrative power,and lies following the environmental public interest litigation,it proposes to issue judicial interpretations through polish legal interpretations to improve the standards for entering the litigation procedures before litigation,and to clarify the procuratorate’s status through “judicial approval” and “guidance cases”.Additionally,the pre-litigation procedures and the exercise of environmental legal supervision powers,the clarification of the independent status of the pre-litigation procedures,and the clarification of the entire process of the pre-litigation procedures shall be led by the procuratorate;the rules and working documents should also be improved and perfected,and the environmental supervision powers in the pre-litigation procedures of the prosecutors should be clarified.Furthermore,it is suggested that boundaries be clarified the pre-litigation procedures to adopt "behavior-oriented",administrative agencies promulgate regulations or working documents to cooperate with pre-litigation procedures,and encourage citizens,environmental protection organizations,etc.To actively participate in the pre-litigation procedures.