违法行使职权类行政公益诉讼的启动标准研究——基于68件司法判决的分析

The Starting Standard of Administrative Public Interest Litigation of Illegal Exercise of Authority: Analysis Based on 68 Judicial Decisions

如何确立启动标准是违法行使职权类行政公益诉讼制度的核心问题。法规范制定者在确定启动标准时并没有明确表态,在“行为标准”“结果标准”间游走。然而,通过对68件司法判决进行类型化分析,发现检察机关在实践层面不存在疑惑,以公共利益遭受实质性损害为标准。为平衡两者关系,有必要确立启动标准判断的三阶段方法:一是以违法行使职权行政行为与公益受损害结果的关联度为依据来区分“借力型公益诉讼”与“自立型公益诉讼”;二是区分风险预防与实际损害标准,“借力型公益诉讼”按实际损害标准处理,“自立型公益诉讼”则采取“沙漏型”标准,即对原来双阶段判断标准进行改造,诉前阶段采取风险预防标准、诉讼阶段采取实际损害标准;三是辅助单行法律法规实现启动标准判断的规范化。

How to establish the starting standard is a core issue of the administrative public interest litigation system of illegal exercise of authority. In view of this problem, the law standard makers did not give a clear attitude in determining the starting standard, and constantly changed between “behavior standard” and “result standard”. However, after a typification and analysis of 68 judicial decisions, it is found that there are no doubts in the practice level of the prosecution service, based on the standard of substantial damage to the public interest. In order to balance the relationship between the above two sides, the three-stage method of judging the starting standard is put forward: Firstly, the relationship between “forced public interest litigation” and “self-reliance public interest litigation” is based on the correlation between administrative acts and public welfare damaged results in the illegal exercise of power. Secondly, to make the difference between risk prevention and actual damage standards, “force-based public interest litigation” is accordance to the actual damage standard, while “self-reliant public interest litigation” tends to adopt the “hourglass-type” standard, that is, the original two-stage judgment standard for transformation, pre-litigation risk prevention standards, litigation stage to take actual damage standards. Thirdly, through the analysis of laws and regulations to achieve the standardization of the starting standard.