Limitation Of Administrative Public Interest Litigation

Since the implementation of China’s administrative public interest litigation system,it has achieved remarkable results in the protection of public interest.The pre litigation procedure has played an important role in solving problems,which helps to save the judicial resources and reduce the confrontation of departments.In Chinese judicial practice,a large number of confirmed illegal judgments have been used,forming the deterrent force of public interest litigation.In order to form an all-round protection of public welfare,the innovative breakthrough has been made: the type of judgment is altered to some extent according to the different situation in the suits.However,the practice of administrative public interest litigation in China also shows a tendency of expansion,which is embodied in the large growth of the number of cases in a short period of time;the imbalance of the development of the types of public interest litigation between the people and the public;the lack of judicial effectiveness of some litigation cases and the high winning rate of the plaintiff.The administrative public interest litigation system in China insists on the Chinese experience as the body and the western learning as the use.To explore the reasons for the expansion of the development,we must base on the reality of China.Firstly,the promotion of value orientation is due to the difference between the East and the west: the western countries are influenced by individualism,so the concept of public welfare is small;In contrast,China culture pays great attention on collectivism,and as a result,the scope of public welfare is larger.Secondly,it is closely related to the promotion of policy and government’s encouragement.In the early phase of the establishment of administrative public interest litigation system,most of the governments in China attach great importance to it,which gave a rise to the development of it.Otherwise,many local departments cooperate together,which makes the number of administrative public interest litigation cases in China increase greatly.Thirdly,the procuratorate organs have two different identities: the legal supervisors and public interest litigants.But how to coordinate these two identities in practice is not clear,which leads to the lack of supervision of administrative public interest litigation.Based on the problem of expansion,we reflect on the law of the public interest litigation.The concept of public welfare is difficult to determine and sometimes difficult to compare it with private interest.Under the premise of limited judicial resources,the expansion of public welfare protection is at the cost of giving up the relief of the private interest.Therefore,we should adhere to the principle of subjective litigation as the main and objective litigation as the auxiliary.At present,although the administrative public interest litigation system in China partly embodies the value principle of objective litigation,there is still a big gap in the specific implementation level.The spirit and concept of objective litigation have not been fully implemented.For example,the people’s Procuratorate applies the same burden of proof as the general administrative counterpart,which is not conducive to the substantive fairness between the plaintiff and the defendant.China’s administrative public interest litigation system adopts an inclusive legislative model.In addition to the fourth paragraph of Article 25,the 2017 amendment did not make other corresponding amendments to the provisions,nor did it make timely supplements to the necessary supporting system.Although the judicial interpretation of the two high schools has done a lot of work on how to explain the content of administrative public interest litigation,it still lacks the construction of the whole administrative public interest litigation system.In this regard,this paper attempts to come up with several methods.I argue that administrative public interest litigation should be in modest development.In the aspect of litigation procedure,we should strengthen the improvement of legislation and explore the establishment of a rule system which is consistent with the spirit of objective litigation.First,we should raise the access threshold of public interest litigation: the public interest damage in the case should be serious and urgent and ensure that it’s effective to solve the problem through the litigation.The scope of public interest should be limited in order to prevent the expansion of the litigation.Thirdly,we should change the distribution of the burden of proof.In part of the content of proof,we should also apply the traditional litigation proof method of "who claims,who adduces",and coordinate the distribution of the burden between the administrative organs and the people’s procuratorate according to different situations.Fourthly,we should improve the burden of proof of the people’s Procuratorate Standards,that is,if the plaintiff wants to win the lawsuit,he should bear the higher standard of proof than ordinary civil cases,so as to prevent the People’s Procuratorate from excessively interfering in the work of administrative organs after winning the lawsuit.On the other hand,we should promote the change of the trial mode of the court.Administrative public interest litigation is different from the traditional objective litigation.Therefore,it is not suitable for the way of defense,but more suitable for the idea of procedural cooperation.