| Environmental administrative public interest litigation system has made rapid development from partial pilot to comprehensive promotion.In the environmental administrative public interest litigation,the sued administrative act includes two categories: illegal exercise of authority and omission.Compared with illegal exercise of authority,whether the administrative organ constitutes the administrative omission has become the main focus of controversy in the court trial.At present,it is the key to research the environmental administrative public interest litigation to clearly identify the administrative omission.However,due to the rough but not detailed legislative ideas and inconsistent theoretical research,it is difficult to clarify the administrative omission,and the existing conclusions are difficult to match and adapt to the complex judicial practice.The empirical analysis of 200 judgment documents of environmental administrative public interest litigation shows that the fact of administrative omission cases is complex,which includes both the situation of "should act but not act" and the situation of "should act but not act completely".At the same time,there are many contradictions between the relevant judicial practice,legislation and theory in the connection of administrative responsibility and criminal responsibility,the recognition standard of administrative omission,and the recognition basis of administrative omission,which aggravates the difficulty of the court’s determination of administrative omission,and leads to different results in similar cases.In order to clarify the restrictive factors behind the system,provide normative guidance for the court to determine the administrative omission,make the court trace the judgment of administrative omission to a kind of administrative act,so as to realize the "similar case type judgment" as far as possible,it is suggested to adopt the methods of group case analysis and case exploration,abstract the general rules of the determination of administrative omission,and actively promote the environmental administrative public interest litigation The perfection of litigation system.In addition to the introduction and conclusion,this paper focuses on the judgment documents of environmental administrative public interest litigation,and discusses the identification of administrative omission in four parts:The first part introduces the typical case of "Hunchun people’s Procuratorate v.Hunchun land and Resources Bureau failing to perform legal duties".The case is comprehensive in content and controversial in practice.It has gone through the first and second trials and has been put on trial.The whole process presents the Argumentation Logic of administrative organ,procuratorial organ and judicial organ.Through the summary of the dispute focus of this case,the core issues that affect the determination of administrative omission in the judgment of environmental administrative public interest litigation are brought out.In the second part,we use the method of empirical analysis to investigate the identification of administrative omission in environmental administrative public interest litigation.First of all,this paper combs the legal norms of environmental administrative public interest litigation from the normative level,and points out that the normative level does not have a good definition of administrative omission.The second part adopts the method of empirical analysis to conduct a comprehensive investigation on the determination of administrative inaction in environmental administrative public interest litigation.First of all,this paper combs the legal norms of environmental administrative public interest litigation from the normative level,and points out that the normative level does not have a good definition of administrative omission.Secondly,from the academic level to explore the identification of administrative omission.On the basis of the collection of the advantages of each family,around the core logic of "when doing and not doing",this paper defines the administrative omission as a framework,and clarifies that the differences in terms of administrative omission do not have a substantial impact on this study.Finally,with the help of the collected judgment documents of environmental administrative public interest litigation,from the type of administrativeact sued,the form of expression of administrative omission,the court under jurisdiction,the type of administrative subject sued,the response of procuratorial suggestions,the reasons for the defense of the administrative organ sued,the judgment results of the case and the recognition standards of administrative omission,etc.,the administrative omission in the sample judgment is analyzed Identify the current situation and conduct a comprehensive investigation.The third part,combined with the previous sample statistical analysis,examines the specific issues affecting the determination of administrative omission.It mainly summarizes the following three aspects: first,the confusion between administrative responsibility and criminal responsibility.The principle of "no more punishment for one thing" and the principle of "criminal priority" have become obstacles to the understanding of administrative omission between the administrative organ and the court;secondly,the standard of determining administrative omission is not clear.The application of "standard of conduct","standard of result" and "double standard" derived from the pre litigation procedure is confused;thirdly,the basis for the determination of administrative omission is unreasonable,which is manifested in the response to the procuratorial suggestions and the limitation of objective factors.The fourth part aims at the concrete problem,seeks the consummation administrative omission determination countermeasure.First of all,on the basis of establishing the limited principle of "no more punishment for one thing" and the principle of "synchronous coordination",we should standardize the connection between administrative responsibility and criminal responsibility.Secondly,on the basis of rethinking the existing standards of administrative omission,the paper puts forward the establishment of divisional investigation mode and the establishment of substantive legal review standards.Finally,on the premise of clarifying that the response of procuratorial suggestions does not directly affect the court’s determination of administrative omission and that objective factors can be used as exemptions,the basis for the determination of administrative omission is further detailed. |
