On Administrative Public Interests Litigation

The new problems appears inceasingly, along with the environmental protection,sustainable development,social justice and other common with the interests and the long-term interests in the modern society, the protection of the public interests becomes more urgent. Therefore,the modern society more and more relies on the government to maintain the public interests. People to the government's reliance and the expansion of itself powers, leading to administrative power expand extremely. So it often violates the legal interests of the private right and the social public interests.When the illegal administrative behaviors violate the former'interests , casualty can bring up the administrative litigation by law.But when the illegal administrative behaviors violate the public interests, because of the direct relation of the principle system roughly, it cause the lack of the plaintiff qualifications and the oversight in the inspection and the restriction of the administrative power.Only those whose right is impinged and which violated with the threat can be entitled to be given relief.In judicature,this principle can be used strictly, but on the public laws this principle is not enough.Because it neglects the public interests.The legality of modern countries is founded on the basis of the theory of natural law. People form a government through social contract. The power of government originated from individual right. The government power must serve for the people within the limits of public welfare. Service is the duty of the government, and enjoying service is the right of the people. The government must always maintain the public interests. In a society, the public interests is the core and forms the material basis of the society. So if there is no public interests. the society will disintegrate finally, the power of the country will lose the base of its existence, and the individual interests will lose its protection. At present, law circle explored much how to effectively prevent the administrative power damaging the individual right, and in practice, our country have also set up a series of system. But there is no effective check and controlling doctrine to avoid potentiality of the damage of the administrative power to the public interests,so partial illegal act goes out of the limits of law. The preservation of the public interests is dependent on an efficient government. If the administrative power is out of control, it will do harm to the public interests, which is more serious than an individual can do. If we can not set up an effective system to control such illegal act of government, the administrative power will do harm to the public interests, which even can not make good. Many Chinese scholars discuss the question aiming to establish a system of administrative litigation for public interests. The paper focuses on the problem and tries to do a bit to the improvement of the system of administrative litigation by analyzing theories of Chinese and overseas scholar.This article is divided into four parts:In the first part, I probe into the basic principle of the administrative public interests litigation,argue the concept and characteristic of administrative public interest litigation, specially for the meaning of"public interests"--the key word in the system of administrative public interests litigation. I also distinguish the relevant concepts of the administrative public interests litigation and advance my own opinion. So we have a further understanding on the theory of public interest litigation. Finally, distinguishing the legal basis of administrative public interests litigation .In the second part, after a brief introduction to the practice of national administrative public interests litigation in foreign nations such as America, we will have a deeper comprehension on the administrative litigation and realize the necessity to build the system administrative public interests litigation in our country. In order to absorb good experience according to practicing of legal system and concrete national conditions of our country .In the third part, I analyze the current situation of administrative public interests litigation in our country, discusses the necessity and feasibility of establishing the system of administrative public interests litigation. Law of Administrative Litigation aims to protect people's legal rights and interests, while supervision and restriction towards administrative behaviors belongs to the aims of the law. Besides, the number of cases that require administrative offices to execute obligatorily increases in reality, however, there is no legal foundation to sue administrative illegality that damages public interests. So setting up the system of administrative litigation for public interests is necessary. Analyzing the constitution and the procedure law basis of public interests litigation and Judicial interpretations of administrative litigation has been established for the Public Interests Litigation opened the door to hope, and in line with the Administrative Procedure Law values were analyzed, we should know that there are not only the foreign conditions expediting the system of administrative public interests litigation but also the domestic soil provided by the development of our country's legal system. Above all we can get the conclusion that it is feasible to establish the system of administrative public interests litigation. Finally, the author analyzes the main obstacles in constructing the system of administrative public interests litigation. in order to solve specific problems in the construction of the system.The forth part describes the structure of the system of administrative public interests. The main form of the litigation consists of five parts. Firstly, t he scope of accepting cases of the administrative public interests litigation. I put forward that the range of administrative public interests litigation should include the abstract administrative behavior, combing the provision in our country"Administrative Litigation Law"and current judicial explanation. Secondly, the plaintiff qualification of administrative public interests litigation. The subject of protecting public interests should be plural, and the qualification of being representative of public interests should entrust to individual, social group and procuratorate , so that anyone who concern about public interests has right to sue the administrative illegality of offices. Thirdly, the burden of proof and the bearing of expense inadministrative public interests itigation. Proceeding from meaning of the burden of proof, I prove that the defendant should undertake the burden of proof in administrative public interests litigation because of the particularity of administrative litigation and the value characteristic of administrative public interests litigation; Comparing with other countries and regions of our administrative litigation charging, responsing to the specific conditions of on litigation, I raise my own views concerning the issue of cost of administrative public interests litigation. Fourth, the establishing of limiting mechanisms in administrative public interests litigation.in order to protect administrative public interests litigation effectively to play its role to save judicial resources. Fifth, setting up administrative public interests litigation incentive mechanism to encourage individual citizens to protect the public interests for fileding enthusiasm of administrative public interests litigation.