论行政公益诉讼“不依法履职”的评判标准

The Evaluation Standard of“Non-performance of Duty in Accordance with Law”in Administrative Public Interest Litigation

行政机关是否依法履行职责是行政公益诉讼中的争执焦点,也是检察机关提出公益诉讼请求且能否获得法院裁判支持的基础。我国司法实践中对于行政公益诉讼中不依法履职的认定标准存在较大分歧,需要建立清晰、融贯的认定标准。评判标准的确立应立足于我国司法实践,具有易操作、判断、识别兼具灵活性特点。我国“政策实施型”司法模式决定了以结果标准为原则,以行为标准为例外的混合标准。有效保护公共利益是衡量行政机关是否依法履职的标准,把穷尽行政监管手段和客观因素超出主观能力等因素作为尽职免责的合理考虑。

Whether the executive branch performs its duties in accordance with the law is the focus of disputes in administrative public interest litigation,and is also the basis for the procuratorial organs to make public interest litigation requests and to obtain the support of court decisions􀆰In the judicial practice of our country,there are considerable disagreement over the identification standard of non-performance of duty according to law in the administrative public interest litigation,so it is necessary to establish clear and consistent identification standard􀆰The evaluation standard should be based on China’s judicial practice and be easy to operate,judge and identify and flexible􀆰The model of policy-implementing justice decides the mixed standard which takes the standard of result as the principle and the standard of behavior as the exception􀆰Effective protection of the public interest is the measure of whether the executive branch is performing its duty in accordance with the law,and the exhaustion of administrative supervision means and the factors such as objective factors beyond subjective capacity should be taken as reasonable considerations of due diligence and exemption of liability.