Research On The Time Limit Of Prosecution In Administrative Public Interest Litigation

The limitation of prosecution,one of the legal prescriptions in China,is a legal time limit that the administrative counterpart must abide by when seeking for right relief.Administrative public interest litigation has been determined as a legal type of litigation since 2017 when China amended the administrative procedure law.Consequently,administrative public interest litigation should be bounded by the time of prosecution.The prosecution period of administrative public interest litigation plays a crucial role in confirming the time of administrative organs,urging procuratorial organs to exercise the right of public prosecution in time and providing guidance for the court to adjudicate cases.The limitation of action in the Civil Code,the period of exclusion and the time limit of prosecution in the administrative procedure law,all one kind of legal limitation,are differ in the beginning of limitation and the legal consequences caused by the expiration of limitation.Thus,it is necessary to make a distinguish.In short,the starting point of limitation of action and exclusion period is generally calculated from the time when the obligee knows or should know that the right is damaged or generated,and the starting point of prosecution period of administrative litigation is generally calculated from the date when the administrative act is made.The expiration of the limitation of action will lead to the loss of the party’s right to win the lawsuit.If not,the substantive rights,the substantial right will all be lossed for clients,meanwhile,the right of prosecution for administrative counterparts.Administrative acts was divided into administrative acts and administrative acts of omission in China’s administrative procedure law.To bring an administrative lawsuit as a kind of administrative act,we should abide by the provisions of the six-month prosecution period.When the administrative counterpart knows or should know that the administrative act is made,the start counting.However,Administrative public interest litigation cases cannot apply to the period of prosecution.As we all know,In administrative public interest litigation cases,the procuratorial organ is not the administrative counterpart,so it is impossible for them to know the specific time when the administrative act is made in time.Otherwise,an administrative lawsuit against administrative omission cases shall be filed within 6 months from the date of expiration of the duty performance period of the administrative organ.However,In the Administrative procedure law,the field of action for administrative omission is limited to the protection of personal and property rights.Notably,Administrative public interest litigation also cannot be adopted.The fact the general provisions on the limitation of prosecution in the administrative procedure law can not be matched with the mechanism of administrative public interest litigation is administrative litigation belongs to subjective litigation and public interest litigation belongs to objective litigation.In other words,adding too many elements of objective litigation on the basis of subjective litigation will inevitably cause rejection.On June 29,2021,the Supreme People’s Procuratorate issued a document called the rules for handling public interest litigation cases of the people’s Procuratorate,which specifies the time limit for examination and prosecution that the procuratorial organ should follow when handling administrative public interest litigation cases.To some extent,the time limit for examination and prosecution exert an effect on the prosecution period.However,if taking the legitimacy and rationality of the specific provisions into consideration,this method is ineffective.To solve this problem,It is necessary to get to the heart of the matter and make provisions on time limit for administrative public interest litigation.In the short term,we can try to modify the administrative procedure law and set a separate prosecution period clause for administrative public interest litigation.In the long run,only by formulating the "public interest litigation law" and adapting a complete prescription system for civil public interest litigation and administrative public interest litigation,can the problem be fundamentally solved.