On The Study Of Administrative Public Prosecution

Administrative public prosecution is a kind of litigation right delegated by the Procuratorial Authority to sue the administrative subject who damaged, or jeopardized state interest, public interest or unspecified person's legitimate interest under the circumstances that none will or able to bring a suit against above-mentioned administrative subject. It is a state power, and also a right of national prosecution. This definition with abundant connotation shows that administrative public prosecution is an academic proposition which takes the theory and practice into a whole one. To deeply research the topic, not only has the important meaning of theoretical guide in reconstruct the prosecutorial power, but also has the valuable practical meaning in the great circumstance of our deeply reforming our legislative system at present.Although we can discuss administrative public prosecution within administrative litigation right, it is crucial to explore the essence of administrative public prosecution from the aspect of which combined state power and state litigation right. Therefore, the research of administrative public prosecution should adopt comparative analysis method, comprehensive analysis method etc, together with employing the principle of law-philosophy from the relationship of power and litigation right and based on proper orientation of administrative public prosecution in state constitutional structure to fully prove the legitimacy of establishing administrative public prosecution in our country. The more important is to explain the composition of administrative public prosecution deeply, to reasonably design the operating conditions and procedures of administrative public prosecution, to build theoretical system of administrative public prosecution in our country so as to provide theoretical support for the legalization of administrative public prosecution system.As a terminology in area of power, the formation of administrative public prosecution has its special historical background. Due to the influence of many factors such as traditional culture and factual national status, effective laws do not empower administrative public prosecution to the Procuratorial Authority. In a certain degree, these factors restrict the judicial relief of public interests. However, this doesn't mean that we can not establish administrative public prosecution. On the contrary, there are solid constitutional, legal, theoretical and realistic basis to establish administrative public prosecution in our country. Facing to the increasing illegal activities of infringing national or public interest by administrative power, how to realize the suability of public interest has become the realistic background for establish administrative public prosecution in our country. From the aspect of the constitutionalism, state system and government system decide that the public interests refer to people's fundamental interests in our country. Therefore, establishing administrative public prosecution is in accord with the basic theory of separation of power and restriction of power. From the aspect of right relief, the compatibility of administrative public prosecution and judicial relief for public interest is the theoretical basis to establish administrative public prosecution in our country.The structure of administrative public prosecution means the stable and ordered combination mode of key elements of administrative public prosecution, which consists of the subject, object and content. The subject of administrative public prosecution is mainly to legitimate our Procuratorial Authority to exercise administrative public prosecution. Because of administrative public prosecution has the characteristic of procuratorial power and litigation right in our country which laid a solid foundation for the Procuratorial Authority to exercise administrative public prosecution. From the aspect of legal rules, the nature and the status of the Procuratorial Authority decide that it is the most suitable one to exercise administrative public prosecution. The content of administrative public prosecution is mainly to solve that what rights and responsibilities the Procuratorial Authority have when they exercise administrative public prosecution. In order to make good use of administrative public prosecution as a whole, administrative public prosecution should at least cover the following rights: investigate a case on file, prosecute, appear on the court to support the prosecution,non-prosecution, changing prosecution,appeal and counterappeal, etc.The realization of administrative public prosecution means its legalization and standardization in our country. To realize administrative public prosecution, the first step is to provide relevant systems by legislation. Learning from the overseas legislative experience, our relevant legislation should definitely empower the administrative public prosecution to Procuratorial Authority, and especially make clear that under what condition the subject of administrative public prosecution can sue to the court the administrative subject who damaged the public interests. Just like other power, administrative public prosecution may also be abused, which means the deviation to legal operation of administrative public prosecution. The abuse of administrative public prosecution includes the abuse of administrative litigation right and administrative non-prosecution. Therefore, to regulate the abuse of administrative public prosecution is the indispensable content of realizing administrative public prosecution.