构建行政公益诉讼的客观诉讼机制
刘艺构建行政公益诉讼的客观诉讼机制
Construction of Objective Litigation Mechanism in the Administrative Public Interest Litigation System
期刊名称：《法学研究》
期刊年份：
作者：刘艺
单位：西南政法大学
中文关键词：行政诉讼;行政公益诉讼;客观诉讼
英文关键词：administrative litigation;public interest litigation;objective litigation
中文摘要：
我国行政诉讼鲜明的主观诉讼特征，致使行政公益诉讼很难自然生长出来。2017年行政诉讼法修正，正式确立了由检察机关提起的行政公益诉讼制度，构建和发展具有客观诉讼特征的行政公益诉讼机制势在必行。2015年7月起开展的两年行政公益诉讼试点实践，已经呈现出诸多客观诉讼的特征：以违法造成实际损害为起诉条件并以实质合法性为审查标准，诉讼前置程序发挥督促执法功效，受案范围从行政行为扩展到行政活动，主要提起责令履职之诉，确认之诉次之。构建我国行政公益诉讼制度的客观诉讼机制，仍需在受案范围、审理规则、立案程序、审理程序、期限、判决类型等方面突出其客观诉讼特征。
英文摘要：
Theoretical controversies over objective litigation is a significant cognitive cause giving rise to the long absence of administrative public interest litigation in China. After the system of administrative public interest litigation brought by the procuratorate has been established by legislation, relevant theoretical researches and supporting mechanisms need to be improved. In the two-year pilot program, the system of administrative public interest litigation brought by procuratorial organs has already displayed many characteristics of objective litigation, such as taking substantive illegality as the standards of prosecution and review of administrative public interest litigation, defining public interest litigator as both the prosecutor and supervisor, using pretrial proceedings as a highly effective means of supervising law enforcement, giving procuratorial organs both the general investigation power and the responsibility for persuasion, and so on. However, there are still some deeply rooted problems in the relation between reform and rule of law. In the construction of the procuratorial administrative public interest litigation mechanism, China should highlight the protection of the objective order as one of the purposes of public interest litigation. Meanwhile, principles of objective litigation should also be highlighted in such aspects as the purpose of litigation, scope of accepting cases, jurisdiction, trial rules and types of judgment.
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