论行政公益诉讼中“不履行法定职责”之认定

Affirmation of Failing to Perform Statutory Duties in Administrative Public Interest Litigation

"不履行法定职责"是检察机关提起行政公益诉讼的主要案由,也是司法裁判中的主要争议点。有关判决表明司法裁判中对不履行法定职责的判断有所偏差,这影响了行政公益诉讼功能的发挥。在检察行政公益诉讼案件的司法裁判中,应当区分支配型行政机关不履行法定职责和管理型行政机关不履行法定职责,分别采取不同的司法裁判路径。行政机关属于"支配型行政机关"还是"管理型行政机关"应当综合考察法律、行政法规和有关地方性法规与三定方案中具体职权职责规定作出判断。"不履行法定职责"的认定需综合主体、行为、期限和效果等要件才能得出结论。

It is not difficult to find the failure to perform statutory duties is the main cause of the procuratorial organ filing an administrative public interest litigation.And it is also the main point of contention in administration of justice. A large number judgments that the procuratorial organs file a lawsuit on the government failed to perform statutory indicated,there is a gap between practice and theory in judgments. This affects the role of administrative public interest litigation. In judicial decision of procuratorial administrative public interest litigation cases,considering the symmetry of power and responsibility in administrative supervision,statutory duties should be divided into two types: the dominant administrative agency does not perform its statutory duties and so does the administrative administrative agency. They will apply with different paths of judicial adjudication. Whether government belongs to the dominant administrative organo not,it should comprehensively inspect laws,administrative regulations,local laws and regulations of government,and the specific functions and responsibilities of the three-term plan. The determination of non-compliance with statutory duties requires a combination of subjects,behaviors,deadlines and effects to reach conclusion.