行政公益诉讼“诉前程序”检视

Review on “Pre-litigation Procedure” of Administrative Public Interest Litigation

诉前程序是检察机关提起行政公益诉讼的前置程序、必经程序。当行政公益诉讼和民事公益诉出现竞合时,应优先选择行政公益诉讼的诉前程序,以利于直击问题本身。在诉前程序中,检察机关向行政机关发出的检察建议应重在对行政行为进行定性,不必纠缠具体细节,这既节约成本,也给行政机关留有更多的处理空间。对诉前程序中行政机关是否"依法履行职责"要定性和定量分析、从行为本身与行为结果等方面综合权衡,并根据不同案件作具体处理。此外,对少数特殊案件,可以不经过诉前程序或采取特殊的诉前程序内容。

The pre-litigation procedure has been regarded as a prior procedure of public inter- est litigation by the prosecution, but there are still some practical issues that need to be further explored and resolved. When there is competition between the administrative public interest litiga- tion and the civil public interest litigation, the pre-litigation procedure of administrative public in- terest litigation should be preferred. In the pre-appeal procedure, the inspection recommendations should focus on the characterization of the administrative act rather than on the details, which will save costs and leave more room for the administration. The performance of duties by adminis- trative organs should be balanced by qualitative and quantitative measures, the conduct itself and the result of the conduct, and handled flexibly according to the different cases. In addition, the pre-appeal procedure may be omitted or special pre-appeal procedure will be adopted in a limited number of special cases.