On Establishment Of Chinese Administrative Public Prosecution System

For the purpose of protection of national and social public interests, whether countries from British-American legal system, or the countries from the Continental legal system, both authorize a specific administrative public prosecution power to certain public authority (typically is prosecution organization). The administrative public prosecution is corresponding to the administrative private prosecution, there was some historical experience happened in China. However, due to some historical reasons, China's Administrative Procedure Law does not stipulate the existence of administrative public prosecution, as result the public interests of the society cannot get relief arising out of illegal administrative acts in reality. Through a long period of theoretical arguments, there has become a theoretical and practical circles consensus that the prosecutorial organization should have the power to act on behalf of the state and the public interest to initiate administrative public prosecution. However the status of the prosecutor in administrative litigation, their litigation rights and obligations as well as enjoyed by the administrative case of public prosecution procedure, has not yet formed a unified view. Theory comes from practice, still ought to return to practice, to solve practical problems in practice. It is necessary to establishment of administrative public prosecution system in China, and in the near future this subject will be raise attention and concern from legislative side. The author analyze a few basic issues, including the origin, development and theoretical basis of the administrative public prosecution system of, and the present a few opinions on system construction of China's administrative public prosecution, which for the purpose of promoting China's administrative public prosecution system.The first part of this paper is to study the origin and of administrative public prosecution. This part by using the comparative research method, through the comparison of origin and the development process of administrative public prosecution system in major western capitalist countries, as well as the attitude for administrative public prosecution in the history of our country, summed up the concept of administrative public prosecution:with no suitable plaintiff in the case, procuratorial organ that administrative organs violate the provisions of relevant laws, violated the legitimate rights and interests of citizens, legal persons and other organizations, and damages the interest of the state and the public society, then sue to the court in accordance with the administrative procedure, to submit to court for trial. Administrative public prosecution is the advanced stage of Public prosecution development, which has a national public power essential attribute。The fundamental purpose of the establishment of the administrative prosecution is to safeguard national and social public benefit, but in the applicable scope, etc,this system have its particularity.The second part of this paper is to discuss the legal basis and practical necessity of administrative public prosecution. Administrative public prosecution in the western countries have mature and profound legal foundation. Whether objective lawsuit theory, the separation of powers theory, or litigation trust theory, all have its rationality and the specific appliable scope. China's procuratorial organs have the property of the legal supervision.For a long time,the procuratorial supervision are limited to the lawsuit supervision and entity supervision in criminal field,so it is not complete legal supervision power. With the development of society, our country should learn from the experience of other countries, and with the attribute of China's procuratorial organs, to expend the public prosecution power of the procuratorial organs to the administrative lawsuit fields. Setting up administrative public prosecution system in our country can balance the power, rule the country by law, establish legal government, and protect the lawful rights and interests of the citizens request. The realistic necessity exist in current stage in China.The third part is specific construction of the China administrative public prosecution system. Administrative public prosecution system research should not be confined to the theory, but should be reflected in the legislation. This part put forward specific ideas on administrative public prosecution design, combined with the essence and characteristics of basic concepts with respect to administrative public prosecution set forth in the first part, this article provide some suggestion to the basic principle, specific jurisdiction, status and duties, as well as the prosecution with respect to administrative public prosecution. Advice through projects of revising The Administrative Procedure Law of The People's Republic of China,or Judicial interpretation jointly issued by The Supreme People's Court and The Supreme People's Procuratorate, providing the powers and functions of the procuratorial organs bringing administrative prosecution,with hope to finally establish the administrative public prosecution system in our country.