Highlight pre-litigation accuracy and improve the justiciability of administrative public interest litigation

In 2023, the Party Group of the Supreme People's Procuratorate proposed to "handle every case with high quality and efficiency" as the basic value pursuit of procuratorial performance and case handling in the new era and new journey. How to handle administrative public interest litigation cases with high quality and efficiency? This requires the case-handling personnel of the procuratorial organs to actively change their concepts, firmly establish the priority orientation of quality and efficiency, and continuously improve the accuracy and standardization of the procuratorial and case handling of administrative public interest litigation in accordance with the requirements of "three refinements and three strictness" of accurate case filing, strict entry control, fine case handling, strict standardization, excellent results, and strict closure of cases, and take "justiciability" as an important yardstick to promote the improvement of the quality and efficiency of case handling, so as to achieve the combination of "seeking the best before litigation" and "rigidity through litigation" in administrative public interest litigation cases.

1. Use "syllogisms" to increase the accuracy of determining the facts of infringement and applying the law. When handling administrative public interest litigation cases, procuratorial organs should follow the "syllogism" analysis method, that is, the major premise (laws and regulations) - the minor premise (the fact that the public interest has been infringed) - the conclusion (the administrative organ should perform its duties). The existence of facts or hidden dangers that have infringed on the public interest or national interests is the first hurdle for the initiation of administrative public interest litigation, and it is necessary to investigate whether the public interest has been infringed upon, and accurately determine the minor premises. At the same time, special attention should be paid to the difference between public interest litigation procuratorial supervision and administrative procuratorial supervision, and the key difference between the two lies in whether the case is justiciable. In the case of determining the fact that the public interest has been infringed, it is then determined which laws and regulations should be applied, so as to accurately determine the major premise. Since procuratorial supervision of administrative public interest litigation involves different professional fields, procurators must not only look at the superficial facts, but also need to thoroughly understand professional knowledge, and when necessary, experts and scholars may be invited to provide support. For example, the Special Equipment Safety Law stipulates that "large-scale amusement facilities" are special equipment, so is the bouncy castle a large-scale amusement facility? After research, although the bouncy castle is large and has certain dangers, it has not been included in the "Special Equipment Catalog", so it does not belong to special equipment. For another example, the "carousel" equipment is included in the "Special Equipment Catalog", so is the "carousel" of course a special equipment? According to the law, not all carousels are special equipment, only those that meet a certain speed and height are special equipment. Accordingly, if the procurator takes it for granted that the bouncy castle or merry-go-round has potential safety hazards based on the standards of special equipment, and then derives the fact that the public interest has been infringed, and the special equipment safety law is applied, it is a failure to accurately determine the legal interests damaged and the applicable law, and the case handled on this basis is not "justiciable".

2. The "four-step" approach ensures the accuracy of determining the regulatory body. Administration deals with all aspects of social issues. The following four steps can be taken to accurately identify the regulatory entity of a damaged public interest: the first step is to see whether the specific laws and regulations clearly stipulate which department is responsible for the supervision of the damaged public interest; The second step, if the regulatory departments stipulated in laws and regulations do not exist in reality, it is necessary to find a department specifically responsible for the function, such as the competent department of the problem of damage to the public welfare of highways should be the highway bureau according to the law, and the highway bureau was renamed the highway development center after the institutional reform, which belongs to the public institution and is subordinate to the transportation bureau, and some local transportation including highway functions are managed by the natural resources planning and construction administration, which requires the case-handling personnel to do a good job of investigation; The third step is to look at the "three plans" (programmatic documents promulgated and implemented by the establishment departments at all levels of the institutions within their jurisdiction when there are major changes in the initial establishment of the unit or in the process of institutional reform) that may involve the regulatory entities that may be involved in the damage to the public welfare, and find out the functional positioning and the differences between them; The fourth step is to see whether the subject of supervision has actually performed their regulatory duties for the protection of the public interest involved in the case. Through the above four steps, the regulatory entity can be accurately determined.

It should also be noted that some administrative organs have regulatory functions over a public interest matter, but do not have the power to impose administrative penalties, and the power of punishment is uniformly exercised by their superior organs, so can such administrative organs be the targets of procuratorial supervision of public interest litigation? In practice, this issue is controversial. According to the provisions of the Administrative Litigation Law, the administrative organ cannot be the defendant in an administrative lawsuit, and naturally cannot be the object of procuratorial supervision of public interest litigation. In the author's opinion, the administrative organ may be the object of procuratorial supervision of public interest litigation, and the core purpose of administrative public interest litigation is to urge the administrative organ to perform its duties and restore the infringed public interest, rather than to impose administrative penalties on the administrative organs or to have the administrative organs impose administrative penalties. With respect to the fact that the public interest has been violated, the administrative organ may exercise its oversight and management authority to use public power to restore the infringed public interest, and there is no necessary connection between whether it has the power to impose administrative punishments and whether it can effectively repair the damaged public interest, and for leads that need to be subject to administrative punishment, the administrative organ may transfer it to the higher level organ for coordinated handling.

3. Improve the accuracy of countermeasures and suggestions from "two aspects". Whether the damaged public welfare can be effectively repaired and the effect of "seeking the best before litigation" can be achieved, the "accuracy" of the procuratorial suggestions plays a key role. "Precision" includes the accuracy with which problems are pointed out and the accuracy with which solutions are proposed. On the one hand, procuratorial organs should realize that procuratorial public interest litigation is a lawsuit of supervision and coordination, and that procuratorial work in public interest litigation is not a one-size-fits-all affair and cannot replace the administrative functions of other departments. With regard to the fact that the public interest has been infringed upon, the administrative organ may adopt a more appropriate way of performing its duties within the scope of its administrative power to restore it, and the content of the procuratorial proposal naturally cannot replace the administration with justice, depriving the administrative organ of its administrative discretion and even the right of the administrative counterpart to remedy. On the other hand, procuratorial suggestions must not be "issued all at once", and it is necessary to consider whether the problems raised by the procuratorial suggestions are reasonable and whether the proposed countermeasures are feasible. For example, for administrative public interest litigation cases for the protection of cultural relics, most of them involve the issue of capital investment, and the administrative organs cannot obtain funds and are powerless, so the urgency of the restoration of cultural relics and whether the suggestions for the restoration of cultural relics are reasonable are worthy of serious investigation by the case-handling personnel. For another example, why the old community is prone to the problem of "flying wire charging", the fundamental reason is that there is no place to charge, which is not a problem that can be solved by the emergency management department, but a comprehensive problem involving social governance, which needs to be promoted by the procuratorate and multiple departments. Therefore, whether the procuratorial public interest litigation issue is found accurately or not, and whether the proposed countermeasures are effective, directly affects whether the case is "justiciable". Starting from the discovery of clues in the pre-trial procedures, the procuratorial organs should give prominence to the issue of the justiciability of the case, so as to highlight the accuracy of the pre-trial process to improve the justiciability and implement high-quality and efficient case handling.

(Author's Affiliation: People's Procuratorate of Shanyang District, Jiaozuo City, Henan Province)

Source: Justice.com

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