Research On Pre-litigation Procedure For Administrative Public Interest Litigation Sued By Procuratorate

In 2015,China launched a two-year public interest litigation pilot.In 2017,the Administrative Procedure Law was amended,and the system of administrative public interest litigation by the procuratorial organs was finally established.The pre-litigation procedure is a procedure in which the procuratorate urges the administrative organ to perform its duties according to law in the manner of prosecutorial advice before filing an administrative public interest litigation with the court.The essence of the pre-litigation procedure is the filtering mechanism of administrative public interest litigation.Although it is a process link in the administrative public interest litigation system,it has its independent functions and values.In the judicial practice of more than three years since the beginning of the pilot,the pre-litigation procedure played an important role.The vast majority of cases are completed in the pre-litigation process,which saves the judicial resources and urges the administrative organs to actively correct the illegal acts and safeguard the public interest.However,this system has only begun to take shape.Due to the vagueness of relevant theories and institutional regulations,each subject faces some difficulties in judicial practice,so further exploration is needed.To optimize the pre-litigation procedure,the dual identity of the legal supervisor of the procuratorate and the representative of the public interest should first be clarified.Secondly,we should improve the source mechanism of case clues,broaden the channels for the source of case clues,and establish a reasoning system and filing system for cases involving public reports and other agencies transferring clues.Once again,the investigation and evidence collection system should be improved to improve the ability of the People's Bank of China to investigate and collect evidence,and at the same time provide a strong guarantee for the procuratorial organs' investigation and evidence collection rights.Finally,we should improve the quality of procuratorial recommendations,enhance the rationality of procuratorial recommendations,increase communication between procuratorial organs and administrative agencies,and improve supervision over procuratorial recommendations.In the connection between the pre-litigation procedure and the litigation procedure,it should be clearly defined as a formal requirement and a substantive requirement.The formal requirements are the written response of the administrative organ,and the time requirements and content requirements of the administrative agency's reply shall be clarified,and the procedures for the opposition filed by the administrative organ shall be set.The essential element is whether the administrative organ fulfills its statutory duties and clarifies the requirements for the administrative organ to perform its statutory duties.The criteria for considering whether the administrative organ performs its statutory duties should be comprehensive and scientific.