An Empirical Study On The Administrative Public Welfare Lawsuit Brought By The Procuratorates

The prosecution authorities have instituted administrative public interest litigation in China for more than two year,since July 2015,it has been piloted in 13 provincial-level administrative regions,and it has now been promoted to the whole country.Shortly after the end of the pilot program,the Standing Committee of the National People's Congress,the Supreme People's Court,and the Supreme People's Procuratorate amended the "Administrative Procedure Law of the People's Republic of China" and issued judicial interpretations to determine the system in the form of legislation,and incorporated food and drug safety into administrative public welfare.The scope of the litigation.Previously,the administrative litigation against public interests of other subjects can be regarded as the predecessor of administrative public interest litigation.However,the final design of the system is that the procuratorial agency is the sole body capable of filing a case of this type.This is in conjunction with the "legal supervision agency of the procuratorate".The legal position is related to the prosecution's advantages in investigating and public prosecution.In addition to administrative public interest litigation,the procuratorial organs can also bring civil public interest litigation.The two types of lawsuits filed by the procuratorial agency are both distinct and integrated.From a practical point of view,the number of cases in which procuratorial organs bring administrative public interest litigation goes far beyond civil public interest litigation.From the point of view of litigation elements,the defendants and the prosecution cases filed by the procuratorial organs in the administrative public interest lawsuit are relatively concentrated.The defendants are concentrated in the environmental protection department,the forestry department,etc.The types of cases are highlighted as cases of ecological environment and natural resources.In the litigation request,the main petitions filed by the procuratorial agency for the administrative public interest litigation manifested in two types:one is only one type of litigation request,that is,only the requirement to confirm the illegality of the administrative act or the requirement to order the executive authority to perform its duties;the other is Two kinds of lawsuits are proposed,that is,the above requests will be merged or put forward separately.At the beginning of the prosecution,there were many cases in which two kinds of lawsuit requests were filed,and there were also cases in which the lawsuit request was changed or withdrawn during the proceedings.In general,claims requiring confirmation of administrative violations account for a large proportion,and the declaration of administrative public interest is more pronounced.From a procedural point of view,the procuratorial organs filed administrative public interest litigation can be divided into pre-procedure and first-instance procedures,and subsequent enforcement and second-instance procedures.The pre-procedure procedure,that is,the issuing of prosecution advice,is a mandatory procedure for filing an administrative public interest litigation,which has played an important role in the resolution of administrative public welfare cases.However,from a practical point of view,as long as a prosecution suggestion was issued to an administrative agency prior to litigation,there was a lack of procedural norms regarding the number of procuratorial advices and the transition from the pre-trial procedure to the litigation procedure.In terms of jurisdiction,the jurisdiction of the first-instance case is based on the general principle of jurisdiction of the court of the defendant's domicile,and the proportion of remote jurisdiction is relatively small.In terms of evidence,the procuratorial agency's burden of proof in administrative public interest litigation cases is similar to the plaintiffs burden of proof in general administrative litigation and the defendant bears a high burden of proof.In the referee,the application rate of illegal judgments and the procuratorial organ's winning rate are extremely high,and the type of referee is relatively single.Some provinces and cities have also appeared in the referee documents that the procuratorial organs should initiate the inconsistency of the second instance procedure in the form of protest or appeal.After adopting a judgment-led approach to analyze the related issues of the procuratorial agency's filing of an administrative public interest litigation,this article also puts forward a number of recommendations,including:in terms of legislation,to improve the organizational basis of the system and gradually expand the scope of case acceptance;in terms of procedures,Extensively collect clues,regulate the form of pre-litigation procedures,etc.;and promote the use of other beneficial experiments that originate from practice.