Research On The Determination Of "Failure To Perform Legal Duties" In Public Interest Litigation On The Transfer Of State-owned Land Use Right

With the in-depth development of market economy,state-owned land has entered the market circulation,and the granting of land use rights with compensation has brought great economic benefits.However,in the process of market operation,there are also situations such as untimely collection of land grant,development and utilization in violation of the grant contract,and lack of supervision after land grant.Most of these problems originated from the failure and negligence of the state-owned land authorities to perform their legal duties,yet there was once no proper subject to supervise the actions of the state-owned land authorities.Until the establishment of the administrative public interest litigation system for state-owned land,the procuratorial authorities were given the power to supervise the administrative authorities’ performance of their duties through judicial means,which closed the loophole of the system with the lack of supervision in the past.Since the Administrative Procedure Law established administrative public interest litigation in 2017,the overall framework of the administrative public interest litigation system has been basically built.The administrative public interest litigation system has played an important role in regulating the act of granting the right to use land and has made the system of granting the right to use state-owned land develop in the direction of standardization and orderliness.However,with the development of practice,some problems have been revealed,such as inconsistency in the criteria for determining "failure to perform statutory duties" among procuratorial organs,judicial organs and state-owned land authorities,unclear determination of the scope,and neglect of the uniqueness of the field of state-owned land use rights.At present,there is a big controversy between the theoretical and practical circles on the criteria for determining "failure to perform duties according to law",and there are three mainstream views: behavioral criteria,result criteria,and double criteria,and no unified criteria have been reached in practice.There is no unified understanding.This paper focuses on the controversies over the substantive criteria and procedural deadlines in the public interest litigation of state-owned land use rights grant,and argues that the substantive criteria for determining the failure of administrative organs to perform their duties in the field of state-owned land use rights grant should be the outcome criteria.It summarizes the main manifestations of non-fulfillment of duties by the state-owned land authorities,such as failure to collect land grant revenue in a timely manner,unauthorized change of land use,and failure to recover idle land in a timely manner.In terms of procedure,it is suggested that the administrative organ should be given a two-month period to perform its duties from the date of receiving the procuratorial recommendation,and the procuratorial organ should be given a six-month period to file a lawsuit after the expiration of the period to perform its duties,and the court should consider the administrative organ’s performance of its duties from the date of receiving the procuratorial recommendation to the time of filing a lawsuit when determining the "failure to perform duties in accordance with the law.