Study On The Application Of Administrative Public Interest Litigation Performance Judgment

Since the introduction of administrative public interest litigation,the application of the judgment of fulfillment has been much more frequent than other types of judgments,and it has become one of the main forms of effective judgments.It is indisputable that the judgment of performance has an irreplaceable role in restoring the damaged national and social public interests.However,we should also pay attention to the omissions in the process of applying the judgment of performance,which not only reflect the logical misalignment and confusion between the judgment of performance and the judgment of confirming violation of law and ordering remedial measures,but also link the coveted process of the whole administrative public interest litigation system from the surface to the inside.Under the framework of objective litigation concept,this system fails to successfully urge administrative organs to administer according to the law by means of procuratorial supervision and judicial trial,and achieve the institutional goal of maintaining or repairing The objective of administrative public interest litigation is to protect or repair the damaged public interest and maintain the objective legal order.Therefore,focused on the actual situation of this system,the article compares the relevant cases,and aims to find out the problems in the application of administrative public interest litigation,so as to analyze the defects and shortcomings in the micro-operation of this system.On this basis,we explore the nature and scope of judicial review and try to give practical suggestions to the courts on the application of the judgment.The first part of the article takes judgments as the entry point for empirical research,and by compiling all types of judgments applied in administrative public interest litigation cases in practice,and calculating the proportion of performance judgments by year and case area respectively,we observe the application trend of performance judgments in the five years of official implementation,and describe the characteristics of their application at the real level.The purpose of this part is to summarize the characteristics in practice,such as intertwined application with other forms of judgments,unclear application conditions and confusion of concepts.The second part of the article returns to the theoretical level,based on objective litigation,procuratorial supervision,relationship between litigation and adjudication,judicial power and executive power and the requirements of the principle of definiteness to the court decision.Combining the theories related to traditional administrative litigation judgments,we are able to complement the long-standing deficiency of the theoretical basis of administrative public interest litigation within the scope of our ability.According to the functional positioning of the satisfaction of the judgment as it should be in the new context,a tighter jurisprudential logic support is found for the court in the specific application.The third part of the article focuses on the problems revealed in the practical application of the performance judgment in administrative public interest litigation cases.On the one hand,it delves into the constitutive elements of the judgment,takes the boundary of procuratorial supervision,administrative power and judicial power as a grip,and points out the shortcomings of its application principle,application basis,judgment content and application effect by means of the relationship between litigation and judgment and the argument centering on the review of the administrative act being sued;on the other hand,it points out the conceptual confusion and improper use of the judgment with the similar function of ordering the adoption of remedial measures and the application of the wrong conditions to confirm the violation of law.On the other hand,it points out the conceptual confusion and inappropriate use between it and the more similarly functioning decision to order remedial measures and to confirm the violation of law.The fourth part of the article synthesizes the above theoretical foundations,takes the objective of unifying the relief of public interest and maintaining the objective legal order as the platform and guide to re-examine and clarify the functional position,applicable conditions,applicable basis,the boundary with other forms of judgment and the effect that the judgment should achieve.At the same time,by emphasizing the necessity of inconsistency between litigation and judgment,increasing the pre-litigation review mechanism,clarifying the supervisory and management responsibilities of administrative organs,and regulating the determination of failure to perform duties in accordance with the law,the court can apply the judgment of performance more precisely and appropriately,and escort the achievement of the dual goal of administrative public interest litigation.