论行政公益诉讼中“不履行法定职责”判定标准的构建

The Construction of Judgment Standard of"Failure to Perform Legal Duties"in Administrative Public Interest Litigation

我国行政诉讼的体例以普通行政诉讼为主,行政公益诉讼为辅。相较于传统的行政诉讼,行政公益诉讼具有保护公共利益和客观法秩序之目的、检察机关为起诉主体、诉讼程序呈“双阶构造”、判决具有对世效力等新特征。因其特殊性,不履行法定职责的内核也发生了变化。应将“不履行”类型化分为未履职、未有效履职、履职但有瑕疵、未及时履职和不回复检察建议等类型。法定职责的范围除法律、法规、规章、规范性文件外,还包含了“三定方案”和权力清单等。对行政机关是否履行法定职责的判定,应当首先从行为要件判断行政机关是否履行了法定职责,如果行政机关在行为要件已尽其所能,则要根据行政机关的抗辩事由与公益受损状态的因果关系再确定其是否履行职责,而不是仅通过结果标准直接给予否定。

The style of administrative litigation in China is dominated by ordinary administrative litigation,supplemented by administrative public interest litigation.Compared with the traditional administrative litigation,the administrative public interest litigation has the purpose of protecting the public interest and the objective legal order,the procuratorial organ is the main body of the prosecution,the litigation procedure presents a"two-level structure",and the judgment has the effect on the world.Due to its particularity,the core of non-performance of statutory duties has also changed.The"non-performance"should be classified as non-performance,non-performance,performance with defects,non-performance in time and non-response to procuratorial suggestions.In addition to laws,regulations,rules and normative documents,the scope of legal responsibilities also includes the"three fixed plans"and the list of powers.To judge whether the administrative organ has performed its statutory duties,we should first judge whether the administrative organ has performed its statutory duties from the elements of conduct.If the administrative organ has done its best in the elements of conduct,it should determine whether it performs its duties according to the causal relationship between the defense of the administrative organ and the state of public welfare damage,rather than directly deny it through the result standard.