A Study On The Pre Litigation Procedure Of Administrative Public Interest Litigation

The newly revised "administrative procedure law" formally determines the procuratorial administrative public interest litigation system led by the procuratorial organization.On the basis of pilot experience,it retain the system design of the pre litigation procedure,and makes some improvement at the system level.Legislators hope that through the establishment of pre litigation procedures to urge the administrative organizations to take the initiative to correct illegal acts or actively perform their duties,so that achieve the purpose of judicial diversion and save judicial resources.Its idea is to realize public welfare protection with the least judicial resources.In legal practice,the exploration and practice of procuratorial administrative public interest litigation has achieved initial results,and its status and role are becoming increasingly important.The rapid development of public interest litigation highlights the institutional advantages of administrative public interest litigation.Through empirical research,it is found that the pre litigation procedure is the main way to handle public interest litigation cases and the effective way to close the cases.More than 90% of the administrative organizations can take the initiative to self correct and perform their duties lawfully in the pre litigation procedure.At the same time,as an immature system,the pre litigation procedure system of administrative public interest litigation has many problems in practice,which is inevitable.The key lies in how to accurately identify the nature of the problem and improve it.This paper summarizes the problems existing in the pre litigation procedure of administrative public interest litigation in practice by analyzing the case handling data during the two-year pilot period and since the full implementation of administrative public interest litigation.Firstly,the most important procuratorial suggestions in the pre litigation procedure are generally of low quality and lack of reasoning;secondly,the judgment standard of the administrative organ's full performance of lawful duties is not clear and the time limit for the procuratorial suggestion's reply is too rigid;finally,the connection between the pre litigation procedure and the litigation procedure is not smooth,which is not conducive to the rigid supervision of the procuratorial suggestions and the timely protection of the public interest.In order to solve the above problems,this paper tries to find practical and theoretical support for the improvement of the pre litigation procedure of administrative public interest litigation in China through the exploration of relevant practical experience and theoretical achievements in foreign countries,such as the pre litigation notice procedure inthe United States and the supervision request procedure in Japan.At the same time,the paper analyzes the typical cases published by the judicial document network and the Supreme People's Procuratorate,summarizes the reasons why the procuratorial organs bring administrative public interest litigation and puts forward reasonable suggestions.In view of the complexity of administrative public interest litigation cases and the professional nature of law enforcement of administrative originations,we should strengthen the reasoning of procuratorial suggestions,focus on making suggestions on the direction of rectification of administrative organizations,and protect the discretion of administrative organizations;considering it is difficult to get complete recovery and relief of public interest damage in special fields in a short time,we should judge whether administrative organizations perform their duties by whether the means of relief are exhausted and whether the damaged public interest has been significantly improved,and set a more flexible performance period for the administrative organization,so as to better maintain the damaged public interest.Under the premise of clear performance standard and perfect performance time limit,the time and premise for procuratorial organizations to initiate administrative public interest litigation are well judged.However,it is still necessary to pay attention to the relevance between procuratorial suggestions and litigation requests to prevent procedural idleness.