Research On Preventive Administrative Public Interest Litigati On System

Preventive administrative public interest litigation means that in order to avoid irreparable damage to the public interest of the state and society,when the procuratorate comprehensively judges the high degree of probabilistic occurrence of the danger,it is allowed to be made before the administrative act is made,or before the damage result actually occurs.The lawsuit brought to the court to prevent the administrative agency from acting as or confirming that the administrative agency has the corresponding obligation.The difference between the preventive administrative public interest litigation and the traditional administrative public interest litigation is that the time for taking relief is relatively advanced.The judgment of "preventive" for preventive administrative public interest litigation should be based on the high degree of risk of risk occurrence.The procuratorial organ needs to be determined through scientific and reasonable evaluation to avoid the abuse of the right to appeal.Preventive administrative public interest litigation is based on preventive administrative litigation.It is a specific application in the field of administrative public interest litigation.It can not only play the advantage of preventive administrative litigation in terms of rights relief,but also fill the national and social public interest in ex ante relief.The blank on it.The establishment of preventive administrative public interest litigation can achieve more comprehensive protection of the public interest of the state and society,enrich the types of administrative litigation in China today,and play a role in standardizing and rationalizing the settlement of such litigation disputes.Preventive administrative public interest litigation should also follow the requirements of the principle of proportionality.Only when it is possible to determine the illegal and administrative behavior of the administrative organ has almost absolute possibility will cause losses to the public interest of the state and society,and the plaintiff can hardly protect the public interest through other means.Preventive administrative public interest litigation can only be allowed when it is not damaged.Because the object of administrative public interest litigation protection is the public interest of the state and society,it is irreparable for major and damage.The court's confirmation of the illegal judgment made the state and the public interest protected by the administrative public interest litigation case in a state of delayed protection.This shows that there is still a certain gap in the rights relief in our country,that is,after the heavy relief,and lack of prevention beforehand.This is also determined by the premise that the traditional administrative public interest litigation in China is based on the occurrence of damage,Leading to the protection of the public interest is not comprehensive.It is incompatible with the goal of building an"effective and non-vulnerable" rights relief system in modern countries ruled by law.The objective litigation nature of the administrative public interest litigation,which is aimed at supervising public power and safeguarding the public interest,determines that the procuratorate only needs to find that the administrative organ is in danger of illegal or negative inaction,and such danger will also lead to public interest.In case of violation,the procuratorial organ shall assume the duties of the legal supervision organ and initiate a preventive administrative public interest litigation.Therefore,the establishment of a preventive administrative public interest litigation system has its necessity in the context of China.It is precisely because of the existence of preventive administrative litigation that it provides a feasible basis for the construction of preventive administrative public interest litigation.At the same time,when the administrative agency is about to make administrative actions or inaction,it does not cause substantial damage to the public interest,but the consequences of the damage that will occur if the behavior occurs will be difficult to compensate.The delayed judicial review will make it difficult for the public interest.The impact of the repair,Therefore,as long as preventive administrative public interest litigation does not affect the formation of the final independent decision of the executive,there is no breakthrough in the theory of maturity.In addition,the case in which the first administrative power is applied is not the case for all administrative cases.The preventive administrative public interest litigation system should be an exception to the case of applying the first administrative judgment.At the same time,the application of procuratorial suggestions in preventive administrative public interest litigation can greatly alleviate the court's acceptance of the case,and the relief time of the pre-litigation procedure is advanced,and it can also provide comprehensive protection for the public interest.The US environmental citizen litigation system not only reflects the characteristics similar to administrative public interest litigation but also has preventive functions in the legislative concept and specific system design.In environmental citizen litigation,the plaintiff only needs to prove the existence of illegal facts.There is no need to prove that damage has occurred,which has certain implications for the construction of a preventive administrative public interest litigation system in China.To construct a preventive administrative public interest litigation,we should also play the role of prosecutorial advice as a pre-litigation procedure,and take the damage that may occur as the content of the prosecutorial recommendations.This will not only urge the administrative organs to perform relevant duties in a timely manner,but also save judicial costs and achieve Comprehensive protection of the public interest.In view of the illegal acts of the administrative organs,the procuratorial organs shall be allowed to initiate preventive inaction proceedings before the actual acts of administrative actions,or after the occurrence of the damages,to prevent the illegal acts of the administrative organs;for the illegal actions of the administrative organs,the procuratorate It can be raised at a time when the public interest may be violated through a highly probative judgment.Although there are fundamental differences between preventive administrative public interest litigation and traditional administrative public interest litigation,due to the consistency of their litigation purposes,there are still gaps in legislation and practice,and the relevant provisions on preventive administrative public interest litigation can follow the traditional administration.The application of public interest can be consistent with the traditional administrative public interest litigation for the plaintiffs qualifications and the scope of the case,and it is also more conducive to its effectiveness.Through the application of the case and the support of judicial interpretation,it is a more feasible way to gradually construct a preventive administrative public interest litigation mechanism.