The Feasibility Of Administrative Public Interest Litigation

No relief means no rights. The rights and judicial relief are always like the shadowfollowing the body. The requirement of the administrative lawsuit to procedural law is that thecountry under the law is avoided to be engulfed by the substantive law. However, when theadministrative act encroaches on public interests, the corresponding judicial relief mechanismis absent so that a large quantities of damaged public interests can not be effectively protected,which exposes the disadvantages of the traditional lawsuit theory. Only to overstep the lawsuitidea, improve the existing system and solve the dispute caused by the people without directinterested relationship encroach on public interests in the administrative act, the publicinterest can be free from damage by public authority. From this point of view, it has practicalsignificance to select administrative public welfare litigation as breakthrough to do research.This paper attempts to make a definition for public interests and administrative publicwelfare litigation. The public interests are endowed with the State Constitution and laws to allcitizens. The administrative public welfare litigation is a lawsuit encroached on administrativeacts of the public interests. After defining the closely related concepts discussed in this paper,the writer further explores to the theoretical basis and realistic basis for the administrativepublic welfare litigation. The theoretical basis depends on the socialization of rights and anew breakthrough in the new rights protection; also, the administrative public welfarelitigation has attribute of constitutional rights, the necessity of judicial relief to the publicinterests and fair and benefit concept of rule of law as well as. Realistic basis is the existenceof numerous administrative acts which violate of public interest and can not be regulated.Only appealing to the administrative public welfare litigation can the situation be changed.The opinion is that it is opposed to build public administrative litigation system based on thecurrent legal system can effectively protect the public interest and litigation risks exist, whichis insufficient to refute the necessity and feasibility to carry out this system in our country. Atlast this paper will put forward some presumes to overcome obstacles in the build ofadministrative commonweal litigation system, mainly the plaintiff qualification range breaksthrough a traditional principle “The Interest of Action”，such as direct interested person, theprocuratorial organs, the social groups with public welfare, can serve as the plaintiff filed theadministrative public welfare litigation. The adjudication was a special judge appointed by the administrative judicial court to assume the duty of the trial, in order to safeguard the publicinterests litigation to be given the substantive right of claim. In the aspect of the procedureguarantee, it mainly focuses on making a reasonable allocation to the burden of proof betweenthe plaintiff and defendant. This paper has made simple conception in public interest litigationexpenses and reward mechanism in order that the insightful man proposes better idea on thisissue.