论行政公益诉讼制度的建构

On System Construction of Administrative Public Interest Litigation

构建行政公益诉讼制度的时机已经成熟,应当在《行政诉讼法》修改中规定。公益诉讼作为客观诉讼,不同于以利益救济为根本目的的一般诉讼,要综合考虑各种因素来确定范围,既不宜过宽,也要预留发展的空间。建议赋予检察机关和法律、法规确定的特定公益性社团依公民、法人和其他组织申请或单独提起行政公益诉讼的资格。要根据公益诉讼的特点,设置相应的程序,包括检察机关提起公益诉讼之前向行政机关提出检察建议的前置程序和临时禁令等。

It is time to construct the administrative public interest litigation system, which should be written down during the administrative litigation law modification. To be as an objective litigation, the scope of public interest litigation, being different from ordinary litigations which consider interest relief as the basic purpose, should be neither too broad nor too narrow for comprehensive factors. It is suggested that procuratorial bodies and particular public interest associations defined by laws and regulations be given the right of raising administrative public interest litigation spontaneously or when citizens, legal persons and any other organizations applied to them. According to its special features, corresponding procedures should be set, including the procedural prerequisite and the temporary injunction of procuratorial suggestion proposed by procuratorial bodies to administrative bodies before administrative litigations.