预防性行政公益诉讼的制度确立刍议

Research on the Establishment of the System of Preventive Administrative Public Interest Litigation

《行政诉讼法》第二十五条第四款的“侵害”并未涵摄预防性行政公益诉讼,在司法实践和地方立法已出现预防性行政公益诉讼相关内容的基础上,有必要建立该制度。从行政诉讼类型和诉讼制度相融性出发,可知预防性行政公益诉讼和行政诉讼、现行行政公益诉讼差异较大,故此不宜在《行诉法》中规定,应当在法学界呼吁制定的《检察公益诉讼法》中单独规定。

The“infringement”in Article 25,paragraph 4,of Administrative Procedure Law has not been covered in preventive administrative public interest litigation,and it is necessary to establish such a system on the basis of judicial practice and local legislation that already contain relevant elements of preventive administrative public-interest litigation.From the integration of administrative litigation types and litigation systems,we can see that preventive administrative public interest litigation and administrative litigation,and current administrative public interest lawsuits are quite different.Therefore,it is not appropriate to stipulate in Administrative Procedure Law,but should be separately stipulated in Procuratorial Public Interest Litigation Law called for by the legal academia.