The Research On The Theory And Practice Of Procuratorial Organ Participating In Administrative Public Interest Litigation

Administrative public interest litigation is the product of the development of human history to a certain stage,which is accompanied by the market economy,and its emergence,existence and development are inevitable and reasonable.Since the reform and opening-up,China’s economic construction has had a remarkable success,but our country is also at a critical juncture of social transformation,with all kinds of conflicts of interest and social tension.Although great achievements have been made in the field of economic construction,the maintenance of the public interest is flawed and ineffective.Since the 18 th party of the party,judicial reform has been in full swing.The central committee of the CPC has decided to comprehensively advance several major issues concerning the rule of law passed by The fourth Plenary Session of the 18 th CPC Central Committee puts forward several major issues,including the legal basis of establishing systems for procuratorial organs to file a public interest litigation and participate in the administrative public interest litigation.At this point,administrative public interest litigation began to move from theory to practice,and has become a hot issue of legal theory and practice.Administrative public interest litigation refers to when the administrative body of the illegal act or omission of caused by the infringement or violation of public interests,certain parties to safeguard the public interest,and in its own name to the court of administrative litigation.In the administrative public interest litigation,it is through the illegal administrative act of the administrative organ to redress the effectiveness of the public interest.Along with the social affairs becoming more complex,as a means of social control of administrative power has been extended to depth,while the increasing expansion of administrative power in the social management level achieved good effect,the administrative organ is not found in large Numbers but as,erected as a phenomenon,but to a certain extent,affected the social harmony and stability.Therefore,being necessary to establish administrative public interest litigation system in our country,the legitimacy foundation is to maintain public interests and national rule of law,safeguard the government administration according to law,realize the orderly citizen participation in justice,to protect the rights of civil society,the public,to carry out the legal supervision of procuratorial organ function.The legalization of the society is an important guarantee for the long-term stability of the country.It is necessary to promote the administration in accordance with the law,build a government under the rule of law,and realize the rule of law.According to the law,administration is the foundation of China’s construction of the rule of law and the basic principle of administrative power operation,which is also an important embodiment of the good governance of modern society.In our country,establish the administrative public interest litigation system is conducive to resolving social contradictions,reduce social risk,guide and promote the development of civil society,to perfect our power supervision system,realize national modernization management system and management ability.The procuratorial organ,as a broad judicial organ,embodies the interrelationship between judicial power and executive power.The relationship between judicial power and executive power is one of the basic problems that must be solved in any country.From the point of the overall development of administrative law in the western world,in accordance with national,public mode as well as the political,legal,the relationship between the jurisdiction power and administrative power has developed the "night police state","welfare state" and "risk society" three modes.On historical study of the formation of the administrative public interest litigation,and the comparison of extraterritorial jurisdiction dimension analysis,help to theoretically clarify the procuratorial organs to participate in administrative public interest litigation system theoretical foundation behind.Procuratorial organs as legal supervision organs of the constitutional legal participation in the administrative public interest litigation,compared with the citizens,legal persons and other organizations have comparative advantages,at the same time also does not violate the principle of "no interest,no litigation".The author thinks that the procuratorial organ is the sole subject of the administrative public interest litigation,and the first is the internal logic of the procuratorial power of China.The right of public prosecution is the basic form of procuratorial organ to realize the function of legal supervision.The right of public prosecution should be extended to administrative litigation,and the administrative public interest litigation system has rich experience.Second,it is in accordance with the basic principle of "power restriction principle".But my so-called "monistic subject" theory is not absolute,but relative.In view of the immaturity of this system in special period,the procuratorial organs should be the sole subject of administrative public interest litigation at this stage.After the maturity of this system,it is suggested to amend the law to liberalize the subject qualification.Therefore,at this stage,it is more inclined to internalize the litigation rights of citizens,legal persons,etc.into the case clues of procuratorial organs,and divide the source of case clues of procuratorial organs into two levels: one is found in the daily performance of their duties;the other is to accept the complaints and reports of citizens,legal persons or other organizations.For the second level of litigation right,if the procuratorial organ receives the report materials or prosecution requirements from citizens,legal persons or other organizations and fails to respond within a certain period of time or formally file a case for acceptance,it may initiate self-reliant administrative public interest litigation by citizens,legal persons,etc.In administrative public interest litigation,the litigation status of procuratorial organ,the administrative public interest litigation is associated with specific construction also relate to the administrative public welfare lawsuit procuratorial supervision of positioning and orientation,the author thinks that legal supervision said more accord with the identity of the procuratorial organ in the administrative public welfare lawsuit choices,and at the same time with the constitutional position corresponds to the procuratorial organ.Administrative public interest litigation is as "good" but it has consistently throughout the administrative legal supervision of the main line,by the procuratorial organs to participate in the administrative public interest litigation,in line with the objective obligation of prosecutors,including maintenance of administrative law not deviating from the maintenance of public goals.Economic foundation determines superstructure.Laws are not deliberately enacted by legislators,it is deeply rooted in the history of a nation,the real is the source of the ethnic common beliefs,habits and common sense.Procuratorial system is the socialism with Chinese characteristics political legal system important constituent,its formation,development and China’s social and economic,political,social,and ecological civilization system in line,are closely linked.Constitution is to procuratorial organs in national legal supervision organ,but in the past,the procuratorial organs seem to be more is a kind of anti-corruption agencies,so should improve the legislation about positioning and prosecutorial authority allocation,solve the legislation of procuratorial authority "national legal supervision organs" orientation and the gap is actually a "litigation supervision" practice.Through the perspective of the administrative public interest litigation system,this paper studies the influence of administrative public interest litigation on procuratorial organs and the institutional reflection and concept reconstruction of the legal supervision power of procuratorial organs.In the context of the reform of the litigation system centered on trial,the procuratorial organ should return to the initial state of legal supervision.In order to promote the rational allocation of procuratorial power and the transformation of the concept of procuratorial supervision,it makes an important contribution to promoting the scientific development of procuratorial work and the construction of the rule of law in China.