An Empirical Study On The Pre-litigation Procedures For Environmental Administrative Public Interest Litigation Initiated By The Procuratorial Agency

Environmental administrative public interest litigation is aimed at maintaining environmental public welfare undertakings.The pretrial proceedings as a pre-procedure of environmental administrative public interest litigation can urge the administrative organs to correct illegal administrative actions or actively perform statutory duties,save judicial resources,and most effectively reduce the damage caused by illegal activities.However,through the analysis of the data and cases of the national environmental administrative public interest litigation procedures before and after the pilot,it can be found that there are still some problems in the practice of environmental administrative public interest litigation.First of all,this paper explains the concept and characteristics of environmental administrative public interest litigation and its pretrial proceedings,summarizes the development process of the relevant provisions of China's pretrial proceedings,and explores the legal basis and functions contained in the pretrial proceedings.Its legal basis includes cost-benefit analysis theory,exhaustive administrative relief principle theory,and mature principle theory;its functions include checks and balances,error correction functions,and efficient functions.Secondly,through the analysis of the two-year pilot work and the practice data of the public welfare litigation in the whole process of implementation in the country,most environmental administrative public welfare cases can be resolved through the pretrial proceedings,and the pretrial proceedings has become an effective method of closing the case.The role of the pretrial proceedings is obvious.Thirdly,the author analyzes the relevant pro-curatorial proposals and several cases that have entered the proceedings through the pretrial proceedings,and summarizes the problems existing in the practice process before the prosecution,including the unclear positioning of the pro-curatorial organs,and the contents of the pro-curatorial recommendations.The form is not standardized,the performance standards of the administrative organs are not clear,the performance period of the pretrial proceedings is unreasonable,and the connection between the pretrial proceedings and the litigation procedures is not smooth.Finally,the corresponding improvement suggestions are put forward for the above-mentioned problems,including: firstly,expanding the source of the case of administrative public interest litigation,enlarging the pro-curatorial organ's “discovery in theperformance of duties”,and improving the relevant legislation of the pro-curatorial organ's functional positioning;Second,the content of the pro-curatorial proposal should be standardized,including the damage of the public interest,the necessary laws and regulations,the description of the duties,and the specific recommendations;the third is to choose the standard of conduct or the result standard according to different cases to determine the administrative organ.Whether to fully perform the duties,and at the same time introduce expert support personnel or specialized agencies to determine whether the administrative organs fully perform their duties;fourth,apply the two-month performance period and longer or shorter flexible performance period according to the circumstances of the case;It is necessary to put the pretrial proceedings and the litigation procedure in an equally important position,and strictly implement the pretrial proceedings to achieve a smooth connection between the two.