行政公益诉讼中被告依法履行职责的判断标准及其程序应对

The Criteria for Judging the Defendant to Lawfully Perform Duties and the Corresponding Procedural Response in Administrative Public Interest Litigation

对行政机关依法履行职责如何判断是检察公益诉讼中公认的核心问题。依法履行职责的判断须同时覆盖到行政处理决定的作出阶段和实现阶段。以行为要件、职权要件、结果要件作为判断标准是经由指导性案例、司法文件和司法解释所表明的实务立场。与采用行为标准相比,采用谋求公益受损状态“有效消除”的结果标准,更有利于确保行政公益诉讼的制度效能。行政公益诉讼审理阶段依法履行职责的判断标准应严于诉前程序阶段。审理阶段被告依法履行职责而使诉讼请求全部实现时,撤回起诉方案成为优先于变更诉讼请求方案的选项,背后的原因可从法院、行政机关、检察机关的角度进行反思性分析。为增强公益诉讼检察权的正当性与合法性,撤回起诉方案应从时间要件、程序要件、实体要件三个方面予以从严控制。

How to judge whether or not the administrative organs lawfully perform their duties is an admittedly core issue of the public interest litigation initiated by the procuratorate. The judgment of the lawful performance of duties must cover both the making and the realizing stages of administrative handling decisions. Compared to the behavioral criteria,the result criteria of the “effective elimination” of the impaired public welfare is more conducive to ensure the efficiency of administrative public interest litigation system. The judging criteria of lawfully performing duties of the trial stage ought to be stricter than that of the pre-trial stage in administrative public interest litigation.At the trial stage,when the defendant lawfully performs duties and the claims of the procuratorate are all fulfilled,withdrawing the prosecution plan becomes an option prior to amending the claim.Exploring the reasons behind it,reflective analysis could be done from the perspective of the court,the administrative organ and the procuratorate. In order to enhance the legitimacy and legality of the procuratorial power in public interest litigation,the withdrawal of the claim should be strictly controlled by three requirements of time,process,and entity.