A Preliminary Study On Military Administrative Public Interest Litigation

Military administrative public interest litigation refers to the lawsuits filed by the military procuratorial organs against the military organs for the violation of the public interests of the military organs to the military courts.It reflects the power allocation between the military procuratorial powers,military administrative powers and military judicial powers.In China,the establishment of a military administrative public interest litigation system can help to make up for the lack of the current public welfare guarantee mechanism,protect national interests and social public interests,and ensure the orderly exercise of military administrative power.Military administrative public interest litigation and military administrative litigation are the relationship between the subordinate concept and the upper level concept.The construction of military administrative public interest litigation system should be carried out under the framework of military administrative litigation system,while reflecting the characteristics of "public welfare";military administrative public interest litigation and administrative public interest litigation It is a binary parallel relationship.Constructing a military administrative public interest litigation system can draw on the specific system and practical experience of administrative public interest litigation,and incorporate the "military" particularity.The first part is an overview of military administrative public interest litigation.First of all,starting from military administrative actions,distinguish the types of military administrative actions,and determine the suability of military administrative actions.Second,define the connotation of military administrative litigation,emphasize that military administrative litigation should follow the special principles of exhausting military administrative relief,not excessively interfering with military administrative power and wartime strictness,and briefly introduced military administrative litigation acceptance and jurisdiction,plaintiff and defendant,Specific systems such as trial and execution.Finally,within the framework of military administrative litigation,the military administrative public interest litigation is proposed,discussing its necessity and feasibility,and analyzing the two concepts of military administrative public interest litigation and administrative public interest litigation,military administrative public interest litigation and military prosecution public interest litigation.The second part of the scope of accepting military administrative public interest litigation.On the one hand,based on the characteristics of "military" and "public welfare",thescope of accepting military administrative public interest litigation should abide by the three basic principles of limitation,damage to reality and wartime prohibition.On the other hand,focusing on the understanding of the nature of litigation,military administrative subjects,military administrative actions and public interests should be taken as the standard for establishing the scope of military administrative public interest litigation.Finally,adopt the mixed model of first affirming and then denying the enumeration,and combine the "administrative behavior theory" to determine the specific content of the scope of military administrative public interest litigation.The third part is the main body of military administrative public interest litigation.By clarifying the attribution of military procuratorial power,analyzing the functional positioning of military procuratorial organs,and then determining that the prosecution subject of military administrative public interest litigation is the military procuratorial organ.As the main body of prosecution,the military procuratorial organ not only meets the requirements of the economic standards of litigation,but also follows the evolution of the public interest litigation system,and has a profound theoretical basis.The main responsibilities of the military procuratorial organ as the main body of prosecution are to put forward procuratorial suggestions,perform litigation duties and conduct legal supervision.The fourth part is the hearing of military administrative public interest litigation.Reconstruct the trial system of military administrative public interest litigation from three aspects: first,the trial of military administrative public interest litigation should follow the three principles of military order priority,public interest measurement and centralized trial;second,combining judicial practice,rationally allocate military institutions And the burden of proof of military procuratorial organs,and design rules for independent investigation and evidence collection by military judicial organs.Third,appropriately expand the scope of military administrative public interest litigation simple procedures,establish a circuit trial system and litigation guidance system,reform appeal trial rules,increase injunction judgments and amend judgments,maximize protection of public interests and save military judicial resources.