Theoretical Analysis And System Construction Of Preventive Administrative Public Interest Litigation

At present,the system of administrative public interest litigation in China is mainly based on the negative post-relief,that is,the procuratorial organs can only initiate the administrative public interest litigation when the administrative organs illegally exercise their functions and powers or fail to act,which leads to the infringement of the national interests or social public interests,and at the same time provide temporary protection of rights.Based on the requirements of comprehensive and effective theory of right relief and the principle of risk prevention,to realize the effective and comprehensive protection of national interests and social public interests,it is necessary to construct the prior relief system of preventive administrative public interest litigation.As a supplement to the current administrative public interest litigation,after going through the pre-litigation procedure,the procuratorial organ should be allowed to file a lawsuit when the administrative organ has made an illegal administrative act or omission but has not caused damage,or is about to do so and has a high probability of causing damage,so as to prevent damage.In order to construct the system,first of all,we should start from the traditional system,point out the defects of the current administrative public interest litigation and temporary right protection in practical cases and system design,and explain the necessity of constructing the system.Secondly,the analysis of the theoretical basis of preventive administrative public interest litigation,the elimination of deterrent factors and the inclusiveness of the current legal system show that it is feasible to construct it in China.Finally,some suggestions are put forward for the construction of the system,according to the the particularity of the protection object of the preventive administrative public interest litigation,the necessity of the pre-litigation procedure and the strictness of the prosecution conditions.As a result,the preventive administrative public interest litigation mechanism is gradually constructed,which is complementary to the general administrative public interest litigation and the temporary rights protection system,and building an "effective and non-faulty" rights relief system.