以社团组织为原告的行政公益诉讼的制度进路

The Access to Administration Litigation for Public Interest by Social Organizations as Plaintiff

在我国,落实以社团组织为原告的行政公益诉讼的现实障碍是契合于本土背景的运作规则缺失。鉴于我国尚不成熟的社团组织体系、注重政治目标的司法文化和执着于结果正义的公民维权传统,在推进以社团组织为原告的行政公益诉讼制度时,应结合制度本身的特质做出以下安排:(1)先在单行立法中明确相应领域的社团组织享有提起行政公益诉讼的原告资格,而后基于经验的累积制定统一性规定;(2)明确作为原告的社团组织仅具有履行请求权和停止侵害请求权,据此实现对公益的维护;(3)明确上述行政公益诉讼程序与我国代表人诉讼、共同诉讼或诉讼调解机制的衔接规则,在行政公益诉讼程序所搭建的沟通与协商平台上,解决牵涉其中的受害群体的损害赔偿问题。

As the advance in China urbanization in the period of social transformation,mass incidents such as land eviction disputes,environmental pollution disputes occur frequently.These issues are closely concerned with all walks of life.This is not only because there are multiple stakeholders involved,but also these disputes are related to the protection on public interest.As a result of the frequent occurrence of these new-type conflicts,the issue of establishing public welfare relief mechanism is often brought up to public.Actually,researchers have poured much attention into the administration litigation for public interest by social organizations as plaintiff and the relevant conflicts,which does not really fitcharacteristics of the disputes and judicial environment in our country.As administration litigation for public interest is an important part in the study of administrative law,there have already been many academic works on this regard.Among these achievements,as a type of public interest relief mechanism,the administration litigation for public interest by social organization as plaintiff（ALPISOP,for short）has been followed by quite a few scholars,but the mechanism was always placed in the subject of group-dispute resolving mechanism or diverse dispute resolving mechanism.Based on a comprehensive survey on the existing research of the topic,the present discussion generally focuses on the comparative advantages of litigation whose plaintiff is social organization,the litigation＇s institutional configuration,and a comparative study between different countries,etc.Arguably,the current study of the topic is concentrated more on introduction,comparison and demonstration of system transplantation than theoretical analysis and interpretation of native situations.Currently,judicial practice and legal norms related to ALPISOP appear in succession.This situation provides practical materials to study the subject,and impels us to shift the researching center of the subject.That is,formerly,the discussions were focused on the problem of whether social groups can be qualified as the plaintiff for public interest in litigation;currently,it is necessary to pay more attention to the problem of how to carry forward this type of litigation.For the elaboration,the present article is divided into five parts.Firstly,the current situation of ALPISOP in China is analyzed.Thus,we can recognize the source of the problem.Specifically,the practice shows two opposite developing trends in ALPISOP,but legislation confirms it finally.And the critical problem is to build a specific norm for China＇s ALPISOP.Secondly,characteristics of ALPISOP is discussed. On the basis of its historical development,we find that there are two distinctive features：one is that the mechanism is aimed at group disputes,the other is that social organizations have specific sources of litigation claims,namely,explicit provisions of legislation.Thirdly,limits on ALPISOP are dealt with.There are three considerations that need to be considered to build ALPISOP in China.That is,developing situation of social groups,local conditions of rights of claiming,the existing system of public interest relief.Fourthly,the construction of ALPISOP is emphasized.On the basis of the analysis above,we suggest three rules to reconstruct ALPISOP in China.Currently,the real handicap to carry forward ALPISOP in China is the lack of concrete rules which fit local judicial circumstances all along.ALPISOP is provided with two premises：unsolvable group disputes with traditional litigation system and mature social organization system.In consideration of restrictions on the development of China＇s group organizations,emphasis is on political objectives of judicial culture,and the traditions of right activist obsessed with the outcome justice.We should rebuild the system which conforms with its characteristic：1）give social groups a plaintiff qualification for administration litigation for public interest in specific legislations,and when the experience is enriched,it is better to draw up uniform provisions,2）clarify the point that social groups possess the right of request for the administration＇s actions that were neglected or ignored and for theirrevoking and stopping their infringements,3）clarify cohesive rules between the public interest litigation and representative litigation,joint litigation or mediation mechanism in administrative law,to solve the problems of compensation for damage of victims.Fifthly,conclusion and significance of the discussion are shown.The promotion of ALPISOP will indicate the supervision of societal force over the government power.