水行政执法与检察民事公益诉讼协作机制研究

Research on the Collaborative Mechanism Between Administrative Law Enforcement on Water and Prosecutorial Civil Public Interest Litigation

最高检和水利部共同倡导建立水行政执法和检察公益诉讼协作机制,因存在规范空白、理论缺陷等问题,水行政执法与检察民事公益诉讼协作机制并未有效建立,进而导致涉水事项治理效果不彰。受到涉水领域部门协作性、后果扩散性、流域整体性影响,水行政执法迫切需要与检察民事公益诉讼协作以实现对水事违法行为的有效治理。水行政执法和检察民事公益诉讼协作机制中,为避免检察民事公益诉讼所代表的司法权过度行政化,应基于功能最适原则,确定“水行政执法为主导、检察民事公益诉讼为辅助”的协作结构,从以水行政主管机关为核心的双向衔接机制、以实现治理目标为核心的诉前程序机制、以公共利益保障为核心的处分协作机制三方面具体展开。

The Supreme People’s Procuratorate and the Ministry of Water Resources jointly advocate the establishment of a collaborative mechanism for administrative law enforcement on water and procuratorial public interest litigation.Due to issues such as normative gaps and theoretical deficiencies,the collaborative mechanism between administrative law enforcement on water and procuratorial civil public interest litigation has not been effectively established and it results in ineffective governance of water related matters.Due to the collaborative nature of water related departments,the diffusion of consequences,and the overall impact of the watershed,administrative law enforcement on water urgently needs to cooperate with procuratorial civil public interest litigation to achieve effective governance of water related illegal acts.In the cooperation mechanism between administrative law enforcement on water and procuratorial civil public interest litigation,in order to avoid the excessive administrative representation of judicial power represented by procuratorial civil public interest litigation,a collaborative structure should be determined based on the principle of functional optimality,with“administrative law enforcement on water as the mainstay and procuratorial civil public interest litigation as the auxiliary”.This should be carried out from three aspects:a two-way linkage mechanism with administrative authorities on water as the core,a pre-litigation procedure mechanism with achieving governance as the core,and a disciplinary cooperation mechanism with public interest guarantee as the core.