On The Identification Of The Plaintiff Qualification Of The Informant In Administrative Litigation

The right to report is not only an important political right,but also an important way for citizens to supervise the administrative agency.With the economic and social development,and the improvement of citizens' legal awareness,the number of cases accepted by the administrative agencies have increased to a large extent.The administrative agencies prefer not to accept cases,fail to respond to cases,slowly reply the cases,which results in administrative litigation between the informants and administrations.As a result of the establishment of the registration system of administrative litigation,the number of new-type cases are also rising.Although the right to report is a general right for citizens,the transformation of the right to the report into the right to sue must be restricted by the provisions of the administrative litigation law on the qualification of the plaintiff.In such cases,the most controversial is whether the informant has the plaintiff qualification in the administrative litigation in judicial practice.According to the relevant provisions of the new Administrative Procedure Law and the Judicial Interpretation of the Supreme Court,a informant must meet two requirements in order to be qualified as a plaintiff in administrative litigation: First,the matter reported must have a relationship with the administrative act being sued.Second,the informant must protect his own legal rights and interests subjectively.Among them,"legitimate rights and interests" is the most critical factor to judge the plaintiff's qualification in administrative litigation.Through analyzing the No.77 guidance case and relevant typical cases,a conclusion can be made that Chinese courts are willing be accept "the interest that is worth protecting".However,it usually leads to excessive discretion and arbitrary judgment of the judge by judging a informant who is qualified as a plaintiff only from the perspective of interest or legitimate rights,so the fairness and justice of the case cannot be realized.At the same time,the "standard of interest relationship" has a large ambiguity,while the standard of judicial judgments needs to have certainty,which contributes to a tension between them.After 2017,the Supreme People's Court introduced the "theory of protection norms" in German law through the " Guangming Liu Case",which made the judgement of the plaintiff's qualification more objective and refined,and strengthened the judicial protection of the rights of the informant.However,the theory also has the logical fault and the uncertainty in application,which cannot well realize the dual functions of the supervision of the administrative power and the protection of the rights of the informant entrusted to the judicial agency by the constitution.This paper intends to explore the expression and application of the protection norm theory and the subjective public rights in China,which were developed in Germany under the positivism legal thought.Chinese courts should,according to individual cases,make full use of the technology of legal continuation,flexibly interpreting the legal norms.Courts should also take a positive attitude towards the right of action of the public interest informants under certain conditions,and reasonably expand the scope of the determination of the informant's qualification in administrative legitimization,so as to ease the dilemma of the implementation of the supervisory responsibility of the administrative agencies,and thus effectively push forward the rule of law,the administrative and managerial abilities.