Determination Of Non-performance Of Statutory Buties In Administrative Public Interest Litigation

Non-performance statutory duties is the theoretical basis in administrative public welfare proceedings and the applicable situation for the procuratorial organs to initiate administrative public interest litigation.The provisions on non-performance of statutory duties in the administrative litigation system are not clear,and the judicial practice of non-performance of statutory duties is still in the early stage,resulting in the existence of theoretical system and practical experience of the dual lack of research,more clear and specific identification path is an urgent problem to be solved.Non-performance statutory duties and omissions in the administrative public interest litigation system can not be distinguished,and the performance of duties in accordance with the law includes the illegal exercise of functions and powers and nonperformance of statutory duties.The types of performance that do not perform statutory duties can be divided into non-performance of procedural statutory duties and nonperformance of substantive statutory duties,respectively,from the form and substance of the expression of non-performance.The problems existing in the system of administrative public interest litigation for the determination of non-performance of statutory duties are,firstly,the provisions of the administrative organ's term of service are unreasonable,secondly,the scope of statutory duties is not clearly defined,and the administrative organs often interpret the scope of their duties in a narrow sense,and the results of judicial examination of administrative actions by the procuratorial organs that do not respond to procuratorial recommendations are contradictory.In order to solve the above problems,it is proposed to reconstruct the criteria for the determination of non-performance of statutory duties in administrative public interest litigation from the following three aspects.First,the qualification of administrative subject,the qualification of administrative subject can be divided into two kinds of supervision responsibility subject and management responsibility subject,and second,the determination of the scope of administrative responsibility,in addition to the traditional administrative litigation type of laws and regulations,advance administrative behavior,administrative agreement content,administrative public interest litigation administrative organs should also include the administrative organs of the administrative duties of the prosecution recommendations belonging to procedural duties,supervision responsibilities in the implementation of administrative decisions and the need to protect public welfare.Finally,the identification of the performance of the functions of the administrative organs,through the expectation of the performance of their duties,the way of performing their duties and the standards of performance of their duties and other specific factors to make a comprehensive discussion of the status of the performance of their duties.Under the guidance of the above theory,combined with the existing problems in practice,we can put forward concrete and perfect opinions from the following four angles: scientific and reasonable calculation of the administrative organ's term of office.