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Study on System of the Administrative Public Interest Litigation

Author: FengZengZhen
Tutor: ChenShuQuan
School: Ocean University of China
Course: Constitutional and Administrative Law
Keywords: Administrative public interest litigation Publ]ic interest System construction
CLC: D925.3
Type: Master's thesis
Year: 2010
Downloads: 171
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Abstract

Public interest litigation originated in the ancient roman period which was a term compared to the private interest litigation. Compared with the modern political institutions, the governmental organizations at that time were less perfect, and it was not enough to maintain public interests only depending on officials’ power. So people were authorized to sue on behalf of social collectivity to remedy the deficiencies. Although in the ancient Roman period, there was not the administrative public interest litigation with modern sense, but it played a crucial role in establishment of administrative public interest litigation of the Civil law and Common law system.On the basis of clarifying concept of public interest and public interest litigation, this article is to reveal the connotation of the chief executive and explore the remarkable characteristics of public interest litigation and its unique social function.To construct any new system, it can not only be on paper, but necessary to have sufficient foundation and explore the basis for building. Construction of administrative public interest litigation not only needs theoretical support, but also needs the foundation of the Constitution and the Administrative Procedure Law. This is also the urgent need of China’s "WTO accession,"and necessary requirement to build a harmonious social society.As a new model of administrative proceedings, Administrative public interest litigation has been established and perfected in many legal states. In United States and Britain, typical representatives of Common law countries, cases played an important role in the process of constructing the system of administrative public interest litigation. However, in civil law countries, such as France and Germany, built the system through relevant provisions of the statute law. Japan adopting both the head of the two Law, taken both by the case law and statutory law to establish the administrative public interest litigation. The ultimate goal of these studies is to design a feasible plan for our system of administrative public interest litigation system. It is believed that, facing the reality of strong demand for public interest litigation practice, as a makeshift, we can fully exploit our existing system resources. That is, through expanding the understanding about terms on civil rights in the constitutional text, we can affirm that the "Administrative Procedure Law" and relevant judicial interpretation do not exclude the administrative public interest litigation, and the judiciary grasps the scope of the interested parties in the judicial practice. But, from the fundamental point of view, China must root in its own legal culture, through the institutionalization change, to establish long-term effective system of administrative public interest litigation. To be specific, four problems in the following need to be solved:First is, plaintiff qualification of administrative public interest litigation; Second is, the scope of cases on administrative public interest litigation; Third is, allocation of the burden of proof to administrative public interest litigation; Fourth is, sharing the costs on administrative public interest litigation. In the process of settlement, everything starts from the existing legislative, judicial explanations to explore deficiencies, providing space to perfect to build their own system. Especially, in the aspect of studying the plaintiff qualifications of administrative proceedings, we can find legal basis for civil to be plaintiff of administrative public interest litigation——"Constitution" in article 2, article 41,"Trademark Law" Article 30, Article 33,etc; And the paper analyses that at present, we should affirm the prosecution right of Procuratorial Organ from the legislative and judicial aspects. On the other hand, we should take the provisions about administrative public interest litigation in "Administrative Procedure Law (Revised draft Proposal)" for reference drafted by Professor Ma Huaide, to prevent the abuse of pre-complaint, and on the basis of this draft to put forward their own amendments, making it more in line with China’s national conditions; The status of prosecutor in the administrative public interest litigation in the status can be invoked in the "prosecutor" status in the Code of Criminal Procedure. For the scope and burden of proof in the administrative public interest litigation, the author studies various theories, basing on analyzing of existing laws and judicial interpretations, and believes that the legistion can adopt the enumerative way to list administrative acts, omissions and abstract administrative acts without a specific victim as the provisions of the case of objects.Aiming at these three types litigation, the law should adopt different standards of burden of proof. On the problem of litigation costs, the author firstly visits our existing legal and judicial interpretation of the relevant provisions, analyses many researchers’views.And on this basis, the author believes that the cost of litigation is not bear by the plaintiff who wins the lawsuit but by the plaintiff losing the lawsuit according to different situations.The losing plaintiff is not required to pay in advance, and the author also has found legal basis for the proposal.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Administrative Procedure Law
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