Research On The Determination Of "failing To Perform Legal Duties"in Environmental Administrative Public Interest Litigation

Based on the judicial practice and the basic theory of traditional administrative omission,this paper points out that environmental administrative public interest litigation "fails to perform its legal duties" from the practical cases There are different standards of judicial determination,unclear standards for the separation of public interests from infringement status and whether pre litigation procuratorial suggestions belong to the scope of legal duties.Then,the performance of non performance of legal duties is classified,the reasons for the administrative organ’s non performance of legal duties are analyzed,and finally the suggestions for "non performance of legal duties" in environmental administrative public interest litigation are put forward.Based on the analysis of judicial cases,there are different judicial standards for the determination of "failure to perform legal duties" in environmental administrative public interest litigation,the "standard for the separation of public interests from the infringement state" is not clear,and whether the pre litigation procuratorial suggestions belong to the scope of failure to perform legal duties.In the judicial practice,the idea of "full chain" supervision and the multiplicity of legal duties are the reasons for classifying the performance of "failing to perform legal duties".According to the particularity of the duty of preventive daily supervision and the duty of environmental restoration in the statutory duty,the author divides the failure to perform the statutory duty into three stages:before,during and after the event with the occurrence of illegal act and environmental damage as two nodes.The reasons for the environmental administrative organ’s failure to perform its statutory duties can be summed up as the mismatching between the regulatory capacity and the regulatory objectives of the environmental administrative organ,the complexity of the environmental administrative management and the defects of the environmental administrative law.According to the classification of the performance of non performance of legal duties,the standards of judicial determination of non performance of legal duties in environmental administrative public interest litigation apply to the standards of conduct in the pre event and post event stages,and the standards of results in the event stage.Furthermore,the judgment of "the public interest is separated from the state of infringement" is also carried out in stages,in which the cessation of the illegal act and the elimination of the illegal consequences(excluding the consequences of environmental damage)are taken as the judgment criteria;in the post event stage,the legality and rationality of the Environmental Restoration Act are taken as the judgment criteria,and at the same time,it is necessary to note that "the ecological environmental restoration" is different from "the state of public interest separated from the state of infringement",as long as the environmental administration The behavior of the organ performing its duties is reasonable and legal,and the behavior can reasonably be expected to achieve the goal of environmental restoration under the condition of normal performance,that is to say,the performance of the legal duties in the post event stage can reach the standard of "public interest from the state of infringement".In the environmental administrative public interest litigation,because the pre litigation procuratorial advice does not directly cause the change of the rights and obligations of the administrative counterpart,the legal responsibilities of the environmental administrative organ do not include the responsibilities determined by the pre litigation procuratorial advice,so the administrative organ can not perform the responsibilities according to the requirements of the procuratorial advice It is directly determined that it does not constitute "failure to perform legal duties".When the administrative organ has actually performed its statutory duties,it does not constitute "failure to perform statutory duties" if it does not reply to the procuratorial organ.