The Positioning Of Procuratorial Organs In Administrative Public Interest Litigation

The development of administrative public interest litigation in China is relatively short.In 2017,with the revision of the Administrative Litigation Law,the administrative public interest litigation system was formally established in China.Regarding the main body of administrative public interest litigation,the author summarizes the previous scholars' theories and theories about the subject of administrative public interest litigation,namely,"one yuan subject theory","binary subject theory" and "three yuan subject theory".The legislation adopted the "one dollar subject" and identified the procuratorate as the sole subject.Developed countries abroad,such as the United States,Britain and France,are mostly multi-subjects.However,Germany is an exception.Only the prosecutor can file an administrative public interest litigation.This may be the main reference country for adopting the "one dollar subject" in China's legislation.The author believes that it is more reasonable to adopt the "dual subject theory",that is,social organizations should also be the subject of administrative public interest litigation.In addition to the advantages of social organizations discussed by scholars in the past,it is proposed to demonstrate its rationality from the perspective of supervisory power,that is,to allow social organizations to file administrative public interest litigations with more supervision power and to protect public interests to the greatest extent.Regarding the role of the procuratorate,it has been debated since the introduction of the administrative public interest litigation into China,even if the judicial interpretation has established the role of the procuratorate.There are five main theories in the academic world,namely,the plaintiff said,the public welfare representative said,the legal supervisor said,the public prosecutor said and the double supervisor said.There are two types of statutory,the role of “public interest litigant” and the role of “public interest litigator”.The author has sorted out and commented on these theories and put forward his own views.The author supports the role of “public interest litigant”,and the role of “public interest litigator” indicates that it is for public interest litigation,and on the other hand,it complies with the rules of litigation procedures,and can realize the coordination and unification of the procuratorate in the field of three major lawsuits.Clearly clarify the powers and responsibilities and position of the procuratorate in administrative public interest litigation.According to the provisions of Article 25 of the Administrative Procedure Law,it positions the functions of the procuratorate as the prosecutorial suggestion function and the prosecution function.This paper first analyzes the starting conditions of the prosecutorial recommendations,and analyzes the conditions,duration,scope of the case,and restrictions on the abuse.Then it put forward the prosecutorial agency's support and prosecution function.Supporting prosecution means that the procuratorate supports social organizations to conduct litigation.It can not only improve the success rate of social organizations,but also reduce the acceptance of procuratorate cases and save judicial resources.