Administrative public interest litigation, also referred to as administrative public prosecution, refers to the administrative litigation that citizens, although not directly interested in themselves, think that the behavior of the administrative subject in exercising its functions and powers is illegal, infringes on public interests or is in danger of being infringed, and a specific organ brings a lawsuit to the court according to law, so as to safeguard public interests. Although the form of administrative public interest litigation has not been recognized by Chinese legislators at present, the establishment of administrative public interest litigation system in China has its theoretical basis and practical needs, and it is also the inevitable trend of the development of the world litigation system. Firstly, this paper expounds the practical necessity of establishing administrative public interest litigation from the needs of protecting public property interests such as environmental public welfare, resources and public facilities. Then, the legal basis of administrative public interest litigation is demonstrated from the aspects of judicial protection of social public rights, restriction of private rights on administrative power, renewal of litigation interests view and public welfare relief. Then this paper analyzes the connotation of administrative public interest litigation, focusing on several major aspects.

Keywords: administrative public interest litigation is directly related to public interests.

First, the practical necessity of establishing administrative public interest litigation

Establishing administrative public interest litigation in China is not only feasible, but also has urgent practical necessity. Specifically, it is mainly reflected in three aspects:

First, the need to protect the environment and public welfare. Environmental public welfare mainly includes various natural environmental interests, humanistic environmental interests, teaching environmental interests and consumption environmental interests. However, such public welfare has been repeatedly violated. There are endless cases about the interests of the market environment, some are dissatisfied with the Telecommunications Bureau conniving at the telecom enterprises' inaction to collect fees indiscriminately, and some are dissatisfied with the railway and civil aviation authorities' illegal fare increase. Some of these disputes brought administrative litigation, and some brought civil litigation, and the result was almost "fruitless." The fundamental reason is that we don't have a reliable public interest litigation system.

Second, we need to protect the public interest of resources. An important goal of building a socialist market economy in China is to maintain the sustained, rapid and healthy development of the national economy. However, in the process of development, there have been many predatory development behaviors in various places, which have caused great damage to water, land and mineral resources. The masses ask for help in many ways and suffer from nowhere to complain. The relevant departments refused to accept the development on the grounds that they did not directly infringe on personal interests. If there is a public interest litigation system, things that concern the vital interests of so many people will certainly not fall into such an embarrassing situation today.

Third, it is necessary to protect the interests of public property such as public facilities. In order to pursue political achievements, some heads of administrative organs spared no expense to engage in "image projects" and "political achievements projects", but failed to timely repair and maintain bridges, roads and historical relics that were in disrepair, resulting in the tragedy of bridge collapse, abandoned roads and destroyed historical relics. It is unrealistic not to have an effective and sound legal system to protect the above public interests. Therefore, the public interest litigation system should be established as soon as possible.

Second, the legal basis of administrative public interest litigation

The establishment and development of any system must be supported by its own theoretical basis, otherwise it will become a castle in the air. The legal basis of administrative public prosecution is as follows:

(A) the judicial protection of social public rights

Social public rights are the extension of civil rights. The degree to which civil rights and social public rights are respected and protected is a reflection of the development level of a country's rule of law and human rights. The rights of citizens are basically confirmed and regulated by law. The formulation and implementation of the law is actually a process in which the law makes the rights of citizens evolve from natural rights to legal rights, and then develop into real rights. Therefore, the main content of civil rights is legal rights, which is also the inevitable requirement of legal protection of rights.

To protect citizens' rights by law, we must first set up a corresponding right system for citizens' rights and provide an institutional basis for protecting citizens' rights, including the constitutional basis and the general legal basis. However, it is not enough to rely on the institutional basis without institutional guarantee, and social public rights must be based on effective litigation means. As far as China is concerned, legislators are often confined to the creative level, paying attention to the integrity of legal norms in its logical structure, while ignoring the problem of legal proceedings from the perspective of future legal implementation. Although China's Constitution and laws set up a preliminary substantive rights system for citizens' social public rights, because these rights are often enjoyed by most people, individual citizens are generally not considered to have direct litigation interests, and their plaintiff qualifications are not recognized.

Without relief, there is no right, and those whose rights have been violated should have the right to apply for relief; Judicial relief is the last line of defense to protect citizens. If any kind of legal right wants to be true, it must give the obligee the right to obtain judicial relief. In short, the basic rights of citizens, including social public rights, should not only be endowed by the universal entity of law, but also be actionable, which is one of the legal foundations for the establishment of administrative public interest litigation.

(B) the restriction of private power on administrative power

According to the provisions of China's administrative procedure law, only citizens, legal persons or other organizations have the right to file a judicial review when they think that a specific administrative act infringes on their legitimate rights and interests; However, if a government action violates the public interest, it will be excluded from the scope of judicial review, because it has no direct interest relationship with the private sector. The theoretical basis of this concept and system lies in the fact that the executive power itself is designed to safeguard public welfare, and its exercise is not subject to judicial review in principle. Private individuals have no right to file public interest litigation. When the court finds that an individual citizen has no direct interest in the case, it does not recognize his litigation interest, that is, it does not recognize his plaintiff qualification.

According to this traditional theory, if the exercise of public rights violates the public interests, it will be corrected by another kind of public rights, and public rights are controlled by public rights. Accordingly, administrative power operates within its inherent scope, even if its behavior endangers or damages social welfare, as long as it does not directly harm private interests, ordinary citizens have no right to interfere and have no right to review it through judicial means; It can only be solved by the internal public power system, that is, the mechanism of decentralization and checks and balances! The results are as follows: on the one hand, the closed design of decentralization and checks and balances makes the public power system expand infinitely, the operation efficiency is getting lower and lower, and the social resources are extremely wasted; On the other hand, it also makes various powers increasingly converge into a huge system, each with its own interests, blocking the way for citizens to manage state affairs and claim various rights and interests, which violates the fundamental jurisprudence of people's sovereignty.

It can be seen that we need to deeply reflect on the overall allocation and interaction of power and right resources, and use private power other than public power to restrict administrative power through judicial review. The essence of judicial review is not only that the court examines administrative actions through judicial procedures, but in essence, its significance lies in using the power of private rights to restrict the exercise of administrative power and protect various private interests and public welfare.

(3) the renewal of the interest view of litigation and public welfare relief.

Under the principle of "no interest means no right of action", it is generally believed that "interest of action", as an important element of the right of action, is the premise for the court to make a judgment. In the traditional theory, the interest of litigation refers to the necessity of relief through litigation when a person's rights and interests are violated or there is a dispute with others; Litigation interests are directly related to the plaintiff's qualification. Therefore, the author believes that the cognitive basis of studying the expansion of litigation qualification should lie in the renewal of litigation interest view.

Before a large number of public nuisance cases appeared, disputes over rights and interests mainly occurred between equal subjects. According to the traditional "view of legal rights", it is easy to determine whether there is litigation interest. With the emergence of new disputes (environmental litigation, public nuisance litigation, consumer litigation, etc. ), it is often impossible to incorporate the facts of these disputes into the right system or framework recognized by the current law. In fact, however, these disputes must be resolved. Because the content of its rights and obligations and the extension of the right subject may not be clear, if we look at it according to the traditional concept and standard of litigation interest, we may not be able to determine that it has litigation interest. Therefore, on the basis of increasing the opportunities or channels for citizens to use litigation and expanding the functions of litigation means to solve disputes and protect rights and interests, the scope of litigation interests should be expanded as much as possible. The measurement of litigation interests should start from its negative function as well as its positive function. Obviously, simply and linearly understanding and grasping interests in administrative litigation is out of date in modern society. After careful consideration, it is inevitable that the government's public power behavior has nothing to do with individual citizens.

Third, the connotation of administrative public interest litigation

Administrative public interest litigation is a new litigation system, and China's administrative public prosecution system should adapt to the national conditions of China, and it is an administrative litigation system with China characteristics. In China, administrative public interest litigation should have its own specific connotation.

To clarify the meaning of administrative public interest litigation, we must first understand the general concept of "public interest litigation". Public interest litigation, as its name implies, refers to the litigation that allows citizens or organizations other than the direct interested parties to bring a lawsuit to the court for acts that violate the law and infringe on the public interests of the state and society, and the court will investigate the responsibility of the offenders. Public interest litigation mainly has the following two characteristics: first, the direct purpose of public interest litigation is to safeguard social justice and achieve social equity, thus safeguarding the interests of the country and society. Second, the prosecutor of public interest litigation can be a person who has no direct interest in the case.

What is "administrative public interest litigation"? In my opinion, in China, administrative public interest litigation (also called administrative public prosecution) refers to an administrative litigation in which citizens, although not directly interested in themselves, think that the behavior of administrative subjects in exercising their functions and powers is illegal, infringes on public interests or is in danger of being infringed, and a specific organ files a complaint with the court according to law to safeguard public interests. This is the proper meaning of administrative public prosecution that should be established in China.

To this meaning, we should grasp it mainly from the following aspects:

(a) the scope of the subject matter of administrative public interest litigation is included in the scope of accepting cases in ordinary administrative litigation and should belong to the category of "other cases that can be prosecuted according to laws and regulations".

As a concept of administrative litigation, administrative public interest litigation has the same litigation concept and value as other administrative litigation, which determines that the object it targets cannot exceed the scope of accepting cases stipulated in the administrative litigation law. In today's judicial practice, with the increasing awareness of power control and civil rights protection, all administrative subjects' acts of exercising their functions and powers can generally be investigated according to law as long as they infringe on the legitimate rights and interests of citizens, except as clearly stipulated by law. Administrative public interest litigation will bring violations of public interests into the scope of judicial review. In other words, as long as it is not explicitly excluded by law, all illegal administrative acts that infringe on legitimate rights and interests are subject to judicial review.

In particular, the author believes that in administrative public interest litigation, the "abstract administrative acts" that are not specifically accepted in the Administrative Procedure Law should be strictly explained. Understandably, there is a special relationship between abstract administrative actions and public interests. Because the nature of abstract administrative behavior determines that once it violates the law (constitution or law) or due process, it will inevitably harm the interests of the public. However, Chinese legislators exclude such administrative acts from judicial review through legislation "according to the national conditions" and hand them over to state power organs or superior administrative organs for review or supervision. This has its reasonable side, but with the increasing trend of democratization and rule of law, it is believed that abstract administrative acts will eventually be subject to judicial constraints and be actionable, which is also the inevitable law of the development of the litigation system in the world and has been confirmed by the evolution of the litigation system in western countries ruled by law. The so-called strict interpretation means that the subject of "abstract administrative act" must be the State Council and its ministries or directly affiliated institutions, people's governments at all levels or administrative organs of provincial government departments; Its manifestation must be administrative regulations, departmental regulations, government regulations or autonomous regulations. Therefore, as long as the normative documents with universal binding force do not meet the above two conditions, they are not "abstract administrative acts" that are inadmissible by law.

(2) The sued administrative act violates the law, infringes on public interests or is in danger of infringement.

First of all, the plaintiff of administrative public interest litigation can bring a lawsuit as long as he thinks that the administrative behavior of the administrative subject has infringed or will infringe on the public interest. As for whether the public interest has been actually infringed or is in danger of being infringed, the court will judge through trial.

Secondly, illegal administrative acts include actions and omissions. Illegal administrative omission generally refers to the administrative subject with legal responsibility, which ignores or lets go of illegal acts that infringe on public interests within its scope of responsibility. In practice, there may be cases of inaction and prevarication by administrative organs, that is, two or more administrative organs have management responsibilities for an illegal act, but they do not stop the act, but shirk each other. In this case, the plaintiff can choose any one, several or all responsible administrative organs to bring a lawsuit as the defendant.

Third, violation of the law includes violation of substantive law and procedural law. Substantive law refers to laws in a broad sense, including constitutions, laws, regulations, rules, autonomous regulations, separate regulations and other various normative documents. "Procedural violation" refers to the violation of the administrative procedure law or the procedural provisions of specific laws on specific administrative acts by administrative subjects. The legality review of administrative procedure is an important means to ensure administrative justice and fairness and prevent behind-the-scenes transactions.

Finally, illegal administrative acts have harmed or are in danger of harming public interests. The so-called public interest refers to the interests shared by the unspecified majority. In today's civilized society ruled by law, public interests not only refer to material interests, but also include personal interests, environmental interests, consumer interests and even aesthetic interests. As far as the characteristics of administrative public interest litigation are concerned, it means that the sued administrative act infringes or harms the public interests, rather than directly harming the private interests of citizens. Of course, some private interests may be harmed while the public interests requested for relief are infringed, but the main purpose of administrative public interest litigation is to safeguard social welfare, and its litigation basis is not that some private interests are infringed or dangerous, but to protect social welfare damaged by the illegal behavior of administrative subjects; Moreover, even if the infringed or threatened public interests include the plaintiff's private direct interests, the law generally does not rule out his choice to obtain relief through public interest litigation procedures.

The function of administrative public interest litigation is obviously preventive, that is, the damage to public interests does not need to happen in reality. Although the public interest has not been infringed in reality, as long as according to the judgment of ordinary rational people, an administrative act will actually harm the public interest after a certain period of time or under certain conditions, the victim can file a public interest lawsuit against the illegal act. The reason for this provision is that the interests of the public are generally related to the interests of most people. Once actual damage is caused, its loss will be difficult or irreparable. Therefore, in order to protect the public interest to the maximum extent, the plaintiff should be allowed to file a lawsuit against the administrative act when the public interest is in danger of being infringed, but it has not actually happened.

(3) The "initiator" of the lawsuit is not required, that is, the citizen has a direct interest in the sued administrative act. In order to safeguard public welfare, citizens can "initiate" administrative public prosecution against the actions of administrative subjects on matters unrelated to their rights and legal interests.

According to the traditional "litigation interest" theory, the plaintiff can only sue if it is directly related to his own rights or legal interests. However, in reality, it is sometimes not enough to solve the problem of self-protection of personal interests faced by society only by direct stakeholders, especially when the interests of the public are infringed. People who have direct interests with administrative actions are often the beneficiaries of administrative actions. It is conceivable how active the beneficiaries are in prosecuting administrative acts that are beneficial to them. Moreover, on a specific issue, people who have direct interests may not necessarily represent the interests of the whole society. Therefore, in order to safeguard social welfare, citizens who have no direct legal interests with themselves should be allowed to file lawsuits against illegal administrative acts.

The author believes that in administrative public interest litigation, the direct infringement subjects of public interests can be divided into two categories: one is administrative subjects, in which the infringement behavior of administrative subjects is generally manifested as acts. The other is non-administrative subjects, including natural persons, legal persons and other organizations. If enterprises exceed the standard, the local environmental protection bureau will ignore it, resulting in large-scale farmland damage and groundwater deterioration. The direct infringement subject of public welfare is polluting enterprises, but the infringement behavior of this enterprise is based on the premise that the Environmental Protection Agency fails to perform its supervisory duties. The administrative subject here is the indirect subject of public welfare infringement, and its illegal behavior is manifested in two forms: action and omission. The significance of this classification lies in:

First of all, whether there is "direct interest" should refer to the illegal behavior of ordinary citizens relative to administrative subjects, rather than the direct infringement of public interests. Because sometimes the two don't agree. For example, in the above case, the farmers who suffered losses have no direct interest relative to the inaction of the Environmental Protection Bureau, but they have direct interest relative to the polluting enterprises, the main body of direct infringement.

Secondly, when the public interest is directly infringed by the administrative subject, citizens who have no direct interest can only file an administrative public prosecution, but not in their own name. When the direct infringer of public welfare is a non-administrative subject, there are two situations: first, although there is no direct interest in the administrative act, citizens who have a direct interest in the direct infringer can choose to directly take the direct infringer as the defendant to bring a lawsuit to the court. Although the lawsuit at this time effectively protects the interests of the public, it is not a public interest lawsuit, but a real administrative public interest lawsuit because of the purpose of the lawsuit. But in this case, the administrative subject of the illegal act can become the co-defendant of the case together with the subject of direct infringement. Second, ordinary citizens file administrative public interest litigation against illegal administrative acts of administrative subjects (indirect infringement subjects). In other words, citizens who have a direct interest in direct public interest infringement have two choices: other litigation and administrative public interest litigation. Generally speaking, when there is only danger of infringement or the infringement is relatively small, they will choose the former; When the infringement has occurred or is serious, most people choose the latter.

(four) the "right to start" administrative public interest litigation is enjoyed by citizens, while the specific organ has the right to sue and has the qualification of plaintiff.

The so-called "starting right" means that citizens can't directly sue the court for administrative acts that infringe on public interests, but can only "report" to a specific organ, which decides whether to prosecute according to law.

Ordinary citizens are not given plaintiff qualification in administrative public interest litigation because it involves the measurement of legal value. Have a high legal level (including legal system, legal system, legal culture, legal quality and legal awareness of citizens, etc.). ), ordinary citizens have the right to sue, which is really conducive to protecting citizens' rights and interests more efficiently in a larger scope and restricting government power without worrying about causing too many lawsuits. However, in the case of poor legal level, it is likely that there will be too many lawsuits and reduce administrative efficiency. China's feudal tradition of more than 2,000 years, the low level of economic development, the imperfection of the whole legal system and the relative lack of citizens' legal quality and awareness determine that we can not give ordinary citizens the plaintiff qualification in administrative public interest litigation for the time being. Therefore, according to the present situation of our country, in order to save litigation economy and prevent litigation abuse, the right to sue for administrative public interest litigation should be entrusted to a specific organ with specialized knowledge.

The specific organ that enjoys the right of administrative public prosecution mainly refers to the procuratorial organ, which carries out procuratorial work as a representative of public welfare and safeguards public welfare. According to the Constitution, the people's procuratorate is the state's legal supervision organ and has the right to supervise all acts that violate the law. It can also be seen from the actual functions of the procuratorate that its main function is to protect the interests of the state and the public. Therefore, the procuratorial organ's power of administrative public prosecution conforms to the constitutional provisions and fully fulfills the due functions of the procuratorial organ.

In some cases, public welfare social organizations or autonomous organizations can also be allowed to file lawsuits against administrative organs for violating social welfare. In real life, members of some social groups are often in a weak position in society, such as consumers and the disabled. Their interests can only be maintained by their own groups because of their own weakness. The main function of such groups or organizations is to safeguard the interests of their members, and they have accumulated a lot of experience in the course of their work, so they can achieve the purpose of better safeguarding public welfare and preventing indiscriminate litigation. In addition, for acts that obviously harm the interests of professionals in this industry, trade associations can also directly bring administrative proceedings to the court.

The procuratorial organ shall make a decision on whether to bring an administrative lawsuit in accordance with the law. Therefore, administrative public interest litigation must be based on the special provisions of the law, and clearly stipulate the plaintiff qualification, scope of accepting cases and acceptance conditions of administrative public interest litigation, so as to prevent specific organs from abusing the right to appeal and affecting the efficiency of administrative actions. The author suggests that legislators should first formulate a special single law, Administrative Public Interest Procedure Law, so that there are laws to follow. Procuratorial organs must examine citizens' requests for prosecution in accordance with laws and legal procedures, and cannot act arbitrarily. The scope of review mainly includes whether the administrative act of the administrative subject is illegal, whether the social welfare is infringed or threatened by the administrative act, and whether it is beyond the scope of accepting cases in general administrative litigation. The procuratorial organ only conducts a preliminary review of the above matters to measure whether it meets the litigation standards. If the prosecution request is rejected after examination, it shall notify the claimant in writing and explain the reasons. If the rejected complainant refuses to accept it, he may review it with the procuratorial organ at the next higher level. After the procuratorial organ decides to prosecute, it does not of course lead to the start of the lawsuit. Like other lawsuits, the court finally decides whether to accept or not. Once the prosecution is accepted, the procuratorial organ will enjoy the same litigation rights and perform the same litigation obligations as the plaintiff in ordinary administrative litigation. At the same time, for the sake of administrative efficiency, even if the prosecution is initiated by the procuratorial organ, the principle of "litigation does not stop execution" should still be implemented.

Procuratorial organs usually bring administrative public interest litigation at the request of "whistleblower" citizens, or they can directly bring such litigation to the court according to their functions and powers. Due to the traditional concept of preserving our sanity and the unreasonable status quo of "winning the lawsuit and losing the whole life" in reality, citizens often dare to speak out when faced with the actions or omissions of administrative organs that infringe on public interests, or because of the consideration of "more things and less things", no one cares, let alone bring an administrative lawsuit. Therefore, when the procuratorial organ thinks that an administrative act infringes or may endanger the public interest, it can take the initiative to bring an administrative public interest lawsuit to the court according to law. However, the exercise of this power must be strictly restricted by law, so as not to cause excessive interference from judicial power to administrative power and reduce administrative efficiency. In addition, in order to encourage citizens to fight against illegal administrative acts and safeguard public welfare, appropriate material rewards should be given to the "whistleblower" in the administrative litigation in which the plaintiff wins the case.

Four. conclusion

At present, China's administrative public interest litigation only stays at the theoretical level, which is still a strange form of administrative litigation for ordinary citizens, and the administrative law circle has not given enough attention and in-depth research, which also reflects that the awareness of civil rights protection and public interest protection in China needs to be strengthened. However, the litigation system without administrative public interest litigation is incomplete. Without the administrative public interest litigation system, the interests of the state and society cannot be fully and effectively guaranteed. Therefore, it is urgent and feasible to establish the administrative public interest litigation system in China at present!

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