“检行共治”视角下行政公益诉讼诉前程序的理论检视与实践机制

Theoretical Review and Practical Mechanism of Pre-litigation Procedure in Administrative Public Interest Litigation Based on the Perspective of“Co-governance of Procuratorial and Administrative Organs”

行政公益诉讼诉前程序是我国公益诉讼的特色制度,其运行的质效保障有赖于检察机关与行政机关形成共治机制。行政公益诉讼诉前程序历经萌芽、起步和发展的变迁过程,蕴含着追求公益与效益的统一、达致司法权与行政权的平衡、形成外部监督与自主纠错的秩序等功能性要求。从行政公益诉讼诉前程序的实践来看,虽然诉前程序在行政公益诉讼中呈逐年上升趋势,检察建议的回复整改率也整体呈上升趋势,但仍然存在被建议行政机关对公益矛盾应对消极、对诉前检察建议回应怠惰,以及检察机关的诉前检察建议刚性不足等机制缺陷。究其原因,主要是因为被建议行政机关调处公益侵害的驱动乏力、对诉前检察建议的判定和反馈机制单一、围绕诉前检察建议的运行机制不实等。鉴于此,行政公益诉讼诉前程序的机制完善应从优化调处公益侵害的驱动机制、补强公益侵害的共治机制、夯实行政公益诉讼诉前程序的质效保障机制等方面着手推进。

The pre-litigation procedures for administrative public interest litigation are a characteristic system of public interest litigation in China,and the quality and efficiency of its operation depend on the formation of a co-governance mechanism between the procuratorial and the administrative organs.The pre-litigation procedure of administrative public interest litigation has gone through the process of sprouting,starting,and developing,containing functional requirements such as pursuing the unity of public interest and efficiency,achieving a balance between judicial and administrative powers,and forming an order of external supervision and independent error correction.From the practice of the pre-litigation procedure in administrative public interest litigation,although the pre-litigation procedure has shown an increasing trend year by year in administrative public interest litigation,and the response and rectification rate of prosecutorial suggestions has also shown an overall upward trend,there are still mechanism defects such as passive response of administrative organs to public interest contradictions,lazy response to pre-litigation prosecutorial suggestions,and insufficient rigidity of prosecutorial suggestions.The main reasons for this are due to the lack of driving force for the suggested administrative organs to mediate public interest infringement,the single judgment and feedback mechanism for pre-litigation procuratorial suggestions,and the inaccurate operational mechanism surrounding pre-litigation procuratorial suggestions.In view of this,the improvement of the mechanism for the pre-litigation procedure of administrative public interest litigation should start from optimizing the driving mechanism for mediating public interest infringement,strengthening the co-governance mechanism for public interest infringement,and consolidating the quality and efficiency guarantee mechanism of the pre-litigation procedure of administrative public interest litigation.