Study On The Administrative Public Interests Litigation

Administrative public interests litigation refers to a procedural action inwhich when the illegal activities or nonfeasance of the administrative subjecthave caused damages or potential damages on the public interests, the lawgrants the party in indirect interest to take an administrative action to court,and to question the legal liability of the administrative subject in order toprotect the public interests. The current Procedural Law in China onlyconfirms the persona standi in judicio of "the party in direct interest" so thatit is in defect of the administrative public interests litigation system for China.Therefore, the absence of this administrative litigation system makes manycases, in which the public interest is injured by illegal administrative actions,cannot be relieved by legal measures.This thesis bases on the study on the administrative public interestslitigation system, and proposes suggestions for the establishment of theadministrative public interests litigation system in China. It has two parts:Part one is the overview of the administrative public interests litigation,which discusses from three aspects in detail.The first section is a general discussion on the concept of theadministrative public interests litigation. Firstly, it begins with its meaningand points out that the administrative public interests litigation is anadministrative litigation in nature. The plaintiff could be a civic legal personor a social group, and they are not the parties in direct interest of the case.What is inspected and reviewed by the judicial institutions is theadministrative action executed by the administrative subject as the organ ofstate. The court hears the cases of the administrative public interests litigationabiding by the administrative litigation law and the administrative law.Moreover, the origin and identification of the administrative public interestslitigation are introduced. Secondly, through comparing with the traditionaladministrative litigation, the administrative public interests litigationcharacterizes itself with the features like: the capacity of the plaintiff has afundamental change, which extends the private interest of "the direct interest"to the public interest of "the indirect interest";the functional quality of theadministrative litigation changes, which turns the traditional "ex-postpunishment" into the "ex-ante prevention";the litigious object is extendedcompared with the traditional litigious object, and the abstract administrativeactions change from "unlitigable" to "litigable";there is a transformation ofthe litigious purpose between the traditional administrative litigation and theadministrative public interests litigation, which shifts the attention from the"private interest" to the "public interest";the force of adjudication is not onlyapplicable to the litigant. Thirdly, the differences between the administrativepublic interests litigation and the representative action are analyzed, whichlay on the facts that the plaintiff of the case is not necessary in interest withthe case.In the second section, the administrative public interests litigationsystems existing in the nations of Continental Legal system and that in thenations of Anglo-American Legal system are introduced. The study on thecurrent systems abroad may be used as a good reference for China toestablish the administrative public interests litigation system.The third section discusses the justness of establishing an administrativepublic interests litigation system. Firstly, at present, a large number of casesemerge in real life demanding the administrative litigation to protect thepublic interest. If we still abide by the traditional theory of "right andlitigation interests", which depends on the party in interest to tackle the issuesof self-protection to the private interest, the protection is far from beingenough and will cause a large number of cases in which the public interest isdamaged by illegal administrative actions but cannot obtain theadministrative relief. Therefore, the administrative public interests litigationsystem should be established urgently so as to protect the social publicinterest. Secondly, vesting the citizens the power to protect the publicinterests through judicial measures is a more effective method to supervisethe administration of the state power than any other administrativesupervision proceedings. Thus, the supervision to the public power demandsthe establishment of the administrative public interests litigation. Thirdly, inthe administrative public interests litigation system, the individual takesaction in order to protect the public interests. Compared with the traditionallitigation, this system could achieve more efforts by spending less judicialcost, and it is effective to elevate the efficiency of the law. Fourthly, thevexatious action without considering the litigation cost happens rarely inChina. Even in the case of vexatious action, the merit of legal administrationwould surpass the demerit of the vexatious action, and the demerit of thevexatious action could be shaken off of through programming the system.The second part discusses the suggestions for the establishment of theadministrative public interests litigation system in China from five aspects.First of all, the plaintiff who initiates the administrative public interestslitigation should be extensive. The most ideal alternative mode of theadministrative public interests litigation in China should be ternary, includingthe individual, social group and the supervisory organ.Secondly, the limitation to accept and hear a case of administrativelitigation regulated in the current law of China, hampers the establishment ofthe administrative public interests litigation system. Therefore, the range ofaccepting and hearing a case should have a reasonable identification. First ofall, the abstract administrative actions should be included within the range.Besides, at the beginning of enacting the administrative litigation, some fieldswhich are closely related to the public interests and are full of acute conflictsshould be introduced into the litigation for public interests, such as the casesof the outflow of the state-owned assets, the cases of administrativemonopoly, the cases of unfair competition, the cases of disregarding theenvironment protection law, the cases of infringement of the legal right of thecustomers, and some other cases involving the litigation for disregarding thepublic interest.Thirdly, concerning the cost of administrative public interests litigation,it is necessary for China to learn the advanced measures from other countriesas references, to reduce the cost of the cases of administrative public interestslitigation, and to make the rules favoring the plaintiff for dividing out thelitigation costs in the related laws. Thus, the occasions in which theindividual cannot initiate an administrative public interests litigation becauseof the high litigation expense could be eliminated.Fourthly, in order to maintain the stable litigation procedures and toavoid the abuse of the litigious right by the plaintiff, the anticipate proceduresare necessary to be set up, which mean that before the litigation, the partyshould report the specific illegal actions of the former-administrative organ ina written form to the administrative authority, and should ask theadministrative organ to correct the administrative actions harmful to thenational interests and the public interests, and require the answer ordisposition from the administrative authority within the legally prescribedtime. If the administrative authority does not give the answer or thedisposition within the legally prescribed time, or either the citizen or thesocial group regards the disposition as improper, that is, the object ofadministrative litigation exists, the party can prosecute an action to the court.Fifthly, compared with other normal litigations, the public interestslitigation is more complex and extensive because it requires more advancedprofessional knowledge and skills, as well as more capital contribution.Therefore, it is necessary to build an incentive system so as to stimulatepeople's passion towards the issues of justice and public interest. China maytry to carry out this incentive system through the punitive damages system.