独立行政公益诉讼法律规范体系之构建

在诉讼目的、提起主体、受案范围、举证责任、诉前程序等方面,行政公益诉讼都与普通行政诉讼有巨大差异。行政公益诉讼虽被置于《行政诉讼法》之中,但后者无法为前者提供一套有效的适用规则。必须在《行政诉讼法》之外另行构建独立的行政公益诉讼规范体系。主观诉讼与客观诉讼之分为构建行政公益诉讼法律规范体系提供了理论基础。《行政诉讼法》所确定的行政诉讼具有主观诉讼倾向,以权利救济为目的;而行政公益诉讼则是典型的客观诉讼。为此,有必要建立以客观诉讼为基础的独立行政公益诉讼法律规范体系,制定专门的行政公益诉讼法,明确行政公益诉讼特有的内容,对诉前程序进行适度司法化,并建立预防性行政公益诉讼,为行政公益诉讼量身定做法律依据。

On Developing a Special Legal System for Public Interest Administrative Litigation

In many aspects,such as the purpose of the lawsuit,the initiating party,the scope of accepting the case,the burden of proof,and the procedure before the lawsuit,public interest administrative litigation is greatly different from ordinary administrative litigation.Although public interest administrative litigation is currently regulated by the Administrative Litigation Law,the latter cannot provide a set of proper rules for the former.Public interest administration litigation has to be based on laws other than the Administrative Litigation Law.The classification of subjective litigation and objective litigation provides the theoretical foundation for the development of the law on public interest administrative litigation.Administrative litigation is a kind of subjective litigation and aims at grievances relief,while public interest administrative litigation is a typical objective litigation.Therefore,it is necessary to formulate the public interest administrative litigation law based on objective litigation,in order to lay out special contents of the public interest administrative litigation,to properly judicialize the pre-litigation procedure,and to establish the preventive public interest administrative litigation,so that the legal basis for public interest administrative litigation can be tailor-made.