The Judicial Determination Of "Failure To Perform Duties According To Law" In Administrative Public Interest Litigation

Since the comprehensive implementation of the administrative public interest litigation system,it has played a significant role in urging administrative organs to actively perform their duties and safeguard national interests.However,as the number of cases increases and social phenomena become complicated,there are disputes between procuratorial organs and administrative organs in determining whether administrative organs "perform their duties according to law".The fourth paragraph of Article 25 of the Administrative Procedure Law stipulates the pre-trial procedure for the procuratorial organ to bring an administrative public interest lawsuit.After entering the substantive procedure,the court shall determine whether the administrative organ has performed its duties according to law.The necessary prerequisite for procuratorial organs to file lawsuits in administrative public interest litigation according to law is that administrative organs do not perform their duties according to law.It can be said that determining whether administrative organs perform their duties according to law is the most important link of administrative public interest litigation.From the perspective of both the current norms and judicial practice,a unified standard has not yet been formed in theory for failure to perform duties in accordance with law,mainly including the behavior standard,the result standard and the comprehensive standard.The court and the procuratorate have not formed a unified standard for recognition either,but it is not difficult to find that the practice is more inclined to the result standard to judge the administrative organs’ failure to perform their duties according to law.Due to the lack of unified criteria,the application of a single standard has led to the disadvantages,resulting in the phenomenon of "different judgments in the same case".This vague standard also makes the administrative organ unclear about the scope of its own duties,and it is difficult to determine whether it has the possibility of performing its duties as an obligation.Therefore,in practice,it is necessary to integrate the two standards for judgment,specifically,the behavior standard and the result standard are not in a unified relationship,but in different stages of operation,according to the different types of cases focus on different standards for determination.The administrative organs should fulfill their duties according to law,including not only laws,regulations,rules and normative documents,but also the follow-up supervision obligations caused by the first act.In addition,in order to give full play to the purpose of administrative public interest litigation,the procuratorial recommendation,as a pre-litigation procedure with independent value,should also become one of the sources of duties of administrative organs.