Judgment Of Omission In Administrative Public Interest Litigation

In 2017,the fourth paragraph of Article 25 was added to the administrative procedure law:"the people's Procuratorate found in the performance of its duties that the administrative organs responsible for supervision and management in the fields of ecological environment and resource protection,food and drug safety,state-owned property protection,transfer of state-owned land use rights,etc.illegally exercised their functions and powers or failed to act,resulting in the infringement of national interests or social public interests,It shall put forward procuratorial suggestions to administrative organs and urge them to perform their duties according to law.If an administrative organ fails to perform its duties according to law,the people's Procuratorate shall file a lawsuit with the people's court according to law." Since then,the administrative public interest litigation system has been written into the law.In practice,the majority of cases in administrative public interest litigation take administrative omission as the cause of action.At the same time,it also exposes a problem:the standard of determining administrative omission in administrative public interest litigation is not clear.Although there has been a relatively unified cognition about the scope and standard of the administrative omission in the traditional administrative litigation,but in view of the purpose of the administrative public interest litigation to safeguard the national and social public interests,the traditional standard can not be copied in the administrative public interest litigation in China,and the recognition standard that ends at the end of exhausting administrative management means can be re established.For administrative organs,public interest litigation requires them to have a wider range of obligations,and requires them to extend their obligations to follow-up supervision,and requires them to exhaust all possible administrative means to stop the damage and save the public interest.For the procuratorial organ,it is necessary to find the balance point between the two identities of legal supervisor and public interest litigant,which can not only play the function of safeguarding the public interest of the state and society given by law,but also preventthe excessive interference of legal supervision in the independent exercise of administrative power and the infringement of the discretion of administrative organ.As for judicial organs,in addition to preventing excessive interference in administrative power like procuratorial organs,we should also make clear the specific content of administrative organs' performance of duties when making judgments.Therefore,the legislative provisions of the administrative public interest litigation system need to be further improved,and the current provisions should be adjusted according to the judicial experience accumulated in practice.