Research On Review Standards For Pre-litigation Procedures For Administrative Public Interest Litigation

Administrative public interest litigation has played a huge role in safeguarding public interests since the beginning of the pilot program.As an important procedure in administrative public interest litigation,pre-litigation procedures play a pivotal role in urging administrative organs to correct violations in a timely manner.The reason is that pre-litigation procedures The procedure solves problems in a non-confrontational way,effectively realizing the harmonious coexistence between procuratorial organs and administrative organs,improving the efficiency of solving problems,thereby saving judicial resources and realizing the maintenance of public interests at a lower cost.Target.However,as the administrative public interest litigation has entered the normal operation from the pilot,the problems that have not been exposed in the pilot have gradually begun to emerge.The procuratorial organ’s review of administrative actions in the pre-litigation procedure is related to the final determination of whether the administrative organ has performed its duties in accordance with the law,and is crucial to the direction of the case.standard.In practice,there are mainly two types of review standards:behavioral standards and result standards.The behavioral standards mainly focus on whether the administrative organs have inaction,illegally exercised their powers,and failed to fully perform their duties.The result standards mainly focus on whether the public interests are protected after the administrative organs take measures.However,these two review standards are not perfect.In practice,in order to win the case,the procuratorial organs have abused the standard of "not exhausting all legal means to protect the public interest" to determine that the administrative organs have not fully performed their duties,and have not considered the objective difficulties of the administrative organs.The result that the public interest is not protected is inversely the problem that the administrative organs have not fully performed their duties.To a certain extent,this has dampened the enthusiasm of the administrative organs,and it is also contrary to the original intention of the pre-litigation procedure of administrative public interest litigation,resulting in the improper interference of the procuratorial power in administrative affairs.In view of the problems exposed in the practice of the review standards for administrative acts in pre-litigation procedures,in the application of the standards of conduct,the review standard of "not exhausting all legal means to protect the public interest" should be narrowly interpreted,and "all legal means" should be clearly limited to "functions and powers that must be performed in accordance with law",rather than referring to all administrative management means that administrative organs can take,so as to avoid improper interference in administrative affairs caused by procuratorial organs only judging administrative acts from their own perspective And when adopting this review standard,the performance of duties by administrative organs in the entire stage of pre-litigation procedures should be examined,and the situation that the administrative organs have completed rectification before the trial but the procuratorial organs still initiate litigation should be avoided,so as to achieve a smooth connection between pre-litigation procedures and litigation procedures.In the application of the outcome standard,on the one hand,it should be recognized that the logic of its application is not that it can be sued based on it simply because the public interest is not protected,but because there is a consequence that the public interest is not protected,it is deduced that the administrative organ has not performed its duties in accordance with the law,and its ultimate foothold is still the failure of the administrative organ to perform its duties according to law.Therefore,when applying the result standard,the results-oriented,strict scope of application of the result standard should be strict,mainly focusing on areas where the rectification period is long and requires follow-up supervision by administrative organs,and whether follow-up regulatory measures are sufficient to protect the public interest after administrative organs take a series of measures to achieve complementarity with behavioral standards;On the other hand,when the public interest is not protected,objective factors such as the governance cycle and the effect of exercising authority should be comprehensively considered,and the objects of supervision should be adjusted in a timely manner under appropriate circumstances,so as to avoid the problem of procuratorial organs ignoring objective difficulties and harshly rebuking administrative organs.Finally,combined with the advantages and disadvantages of the behavior standard and the result standard,this paper believes that the behavior standard focuses on the "attitude" and "process" of the administrative organ in performing its duties.which is a low standard requirement for the administrative organ;the result standard is concerned with whether the result of the protection of the public interest is realized,because the result realization depends on objective conditions to a certain extent and is uncontrollable,so it is a high standard requirement for the administrative organ.Therefore,when reviewing and judging,we should comprehensively consider the controllability of the active actions of administrative organs and the uncontrollability of the realization of the results of the protection of the public interest,adopt a more stringent review of the behavior standards required by low standards,and adopt a more relaxed review of the result standards required by high standards,and establish a review standard with the behavior standard as the main and the result standard as the supplement.