Perspective | Research on Pre-litigation Procedures of Administrative Public Interest Litigation (Part 2)

In terms of legislative norms, the indirect regulations on the high standards of proof for investigation and verification rights have been explained in the previous text. This high requirement for proof standards is actually due to the fact that the internal normative documents of the procuratorial organs ignored the phased characteristics of administrative public interest litigation when they were formulated. Theoretically, there has been ongoing debate about the standards of proof in administrative litigation, mainly with two viewpoints: "pluralism" and "monism." Proponents of "pluralism" believe that "in administrative litigation, the types, nature, and the extent of impact on the rights and interests of the parties should be distinguished to determine the specific proof standards for each case." Scholars advocating "monism" argue that the standards of proof in administrative litigation are independent and should establish a general standard of proof for administrative litigation in China, based on the judge's inner conviction as the standard of proof. Specifically, in the administrative public interest litigation system, the author believes that the "pluralism" viewpoint is more suitable for the laws governing administrative public interest litigation. This is because the administrative public interest litigation system has phased characteristics, and the litigation procedure, as the fundamental procedure of the entire system, has a remedial and reinforcing function when the pre-litigation procedure does not play an effective role, making it a relatively rigid remedial measure. This means that the procuratorial organs' rights to investigate and verify before litigation cannot be completely equated with the rights to investigate and collect evidence after a formal lawsuit is filed.

The pre-litigation phase of administrative public interest litigation corresponds to four tasks: case filing investigation, pre-litigation investigation, pre-litigation effect follow-up investigation, and litigation investigation. These four investigative tasks are interconnected and related. In the two phases, the standard of proof for the facts of the cases corresponding to the procuratorial organs' investigation and verification rights should be a gradual and hierarchical improvement process. Moreover, the focus of the procuratorial organs' tasks varies at different stages, leading to differences in the depth of investigation, so a "one-size-fits-all" standard is not appropriate.

What entities can represent public interest? Regarding this issue, the famous German constitutional scholar Hans Peters believes that "realizing public interest is an absolute task that the state must undertake." We generally consider state organs to be unquestionable representatives of public interest. In China, according to the different divisions of state power, various state organs are established to exercise different powers, mainly divided into state power organs, administrative organs, procuratorial organs, judicial organs, supervisory organs, and military organs. They are all responsible entities for protecting public interest. Administrative organs are tasked with managing state affairs and social affairs, directly protecting and representing public interest. Traditional administrative law theory holds that the task of administrative organs is to maintain public interest. The procuratorial organ is a specialized legal supervision organ of the state and is the supervisory entity of public interest.
 

Currently, administrative public interest litigation mainly focuses on five areas: environmental protection, food and drug safety, and protection of state-owned property. In practice, it is still exploring other areas of public interest protection, such as public safety and the protection of historical and cultural buildings, where some administrative public interest litigation cases are also handled. By reviewing the legislative norms in these areas, we find that the primary entity responsible for protecting public interest in these areas is the administrative organ. Of course, there are also situations where procuratorial power and administrative power intersect in these areas, but it can be clearly stated that in these "specific areas," the procuratorial organ is not the direct and sole representative of public interest. The procuratorial organ should assist the administrative organ in maintaining public interest in its legal capacity, rather than overstepping its bounds.

The pre-litigation procedure is the process by which the procuratorial organ supervises administrative illegal acts, aiming to promote lawful administration by exercising legal supervision rights to achieve the effect of remedying damaged public interest. This identity of the procuratorial organ in the pre-litigation procedure mainly stems from the constitutional positioning as a specialized legal supervision organ. The nature of legal supervision is inherently embedded in the procuratorial power, which is reflected in various specific functions of the procuratorial power. However, in judicial practice, the procuratorial organ tends to position itself more as a protector of public interest. This identity recognition is not incorrect and is not an arbitrary expansion of power without a realistic background. This role positioning of the procuratorial organ will continue to exist for a long time. However, we must clearly recognize that the procuratorial organ is not the direct representative in specific public interest litigation areas. In the administrative public interest litigation system, the procuratorial organ can actively protect public interest based on its role as a public interest representative, but it should also remember its constitutional positioning as a legal supervisor, achieving the goals of administrative public interest litigation design through the professionalism of legal supervision, thus clarifying the logic of the procuratorial organ exercising its powers in the pre-litigation procedure.
 

The "Two Highs Interpretation" defines the identity of the procuratorial organ in initiating litigation as a public interest prosecutor. This indicates that the procuratorial organ represents the damaged public interest in initiating litigation. Although this provision indicates the identity of the procuratorial organ as a protector of public interest, this article argues that due to the procedural characteristics of the legal supervision rights exercised by the procuratorial organ and the principle of functional division, it is impossible for the procuratorial organ to directly take specific measures to protect public interest. Therefore, this identity as a protector of public interest is indirect.
 

Whether in the operation of the pre-litigation procedure or after the conclusion of the trial procedure, the specific measures to protect public interest in specific areas ultimately still need to be implemented through administrative enforcement actions. The judicial organs can only act as a driving force behind the administrative organs, pushing them onto the track of actively performing their duties and legally supervising, and cannot replace the administrative organs in making judgments and handling administrative affairs. Given that the procuratorial organ cannot directly protect public interest, it should adhere to its functional positioning of legal supervision, actively discover case clues in the performance of its duties, and assume the responsibility of protecting public interest through the exercise of supervisory rights.

The focus of the procuratorial organ's performance of duties in the pre-litigation procedure should be on legal supervision rather than maintaining public interest.

The different divisions of state power and functional allocations have always been the foundation for the emergence of the administrative public interest litigation system. The principles of state power allocation pose fundamental requirements for the administrative public interest litigation system and indicate the direction for the exercise of state power by various entities in the administrative public interest litigation system.
 

The power allocation of functionalism mainly configures state power according to the principle of functional appropriateness. The meaning of the principle of functional appropriateness is: "The basis for the exercise of state power in terms of function and organization is judged by the optimal conditions at all levels of the composition structure and decision-making procedures of each matter itself." In short, when allocating tasks, it is necessary to examine which state organ has greater advantages in organization, personnel, and resource allocation, and which state organ is most likely to make the most optimized, correct, and efficient decisions, and then assign the task to this functionally appropriate organ. The emphasis on the 'correctness' and 'efficiency' of the exercise of state power by the principle of functional appropriateness has always been an important orientation in the allocation of state power in our country. Although the principle of functional appropriateness is not explicitly stated in the constitution, it is embedded in the division of powers among state organs in our country.

The design of the administrative public interest litigation system precisely meets the requirements of functional power allocation, with the functional appropriateness of state organs as an important consideration. The administrative powers exercised by administrative organs are extensive and involve all aspects of social life. In the broad field of administrative management, administrative power is the specialized regulatory authority, directly responsible for protecting the legitimate rights and interests of all parties in the administrative management field, social public interests, and national interests. Therefore, in specific areas such as environmental protection, food safety, and state-owned asset protection, which belong to 'administrative regulation', administrative organs have functional advantages, mainly reflected in the professionalism and legality of administrative regulation. From a professional perspective, administrative organs have a team of professionals, sufficient law enforcement resources, and rich law enforcement experience. This enables administrative organs to grasp first-hand event information in a timely manner, make professional judgments, and fulfill regulatory responsibilities promptly. From a legal perspective, administrative organs have law enforcement powers clearly defined by legislation. The positioning of the procuratorial organs in the constitution is as the national legal supervisory authority, responsible for punishing and preventing crimes, supervising litigation activities, and overseeing all parties in exercising their powers according to the law, thus being the responsible entity for maintaining constitutional and legal order. Therefore, in the area of public interest protection in administrative regulation, procuratorial organs do not possess functional advantages in terms of personnel, procedures, etc., and should maintain a certain degree of restraint.

Therefore, in the pre-litigation procedure, the exercise of rights by all parties should comply with the principle of functional appropriateness. The procuratorial organs should leverage their professional advantages in procuratorial supervision to scrutinize administrative actions from a legal perspective, such as including abstract administrative actions within the scope of legal supervision of administrative public interest litigation, contributing to the protection of public interests, thus achieving the optimization of the functions of state organs.

With the implementation of various reform measures from the Fourth Plenary Session of the 18th Central Committee and the amendment of the Administrative Litigation Law in 2017, the connotation and extension of administrative procuratorial work are constantly changing. The establishment of the administrative public interest litigation system has gradually expanded the new path for procuratorial organs to conduct legal supervision over administrative power, promoting the construction of a rule of law government by urging administrative organs to act according to the law. This article draws on Professor Qin Qianhong's theory of the narrow legal supervision of procuratorial organs, arguing that in the pre-litigation procedure of the administrative public interest litigation system, procuratorial organs exercise the powers of administrative procuratorial supervision, while in the litigation procedure, they exercise the powers of litigation supervision. Administrative procuratorial supervision is established around 'public administration', and it, along with litigation supervision established around 'judicial adjudication', constitutes a subordinate concept of narrow legal supervision. Administrative procuratorial supervision corresponds to the relationship between procuratorial supervision in the pre-litigation procedure and litigation procedure. "The core value pursuit of administrative procuratorial supervision is to ensure the complete and unified implementation of the constitution and laws while controlling public administration, aiming to promote the correct and unified implementation of national laws at the level of public administration; the content of supervision is to monitor whether the aforementioned activities strictly comply with the law." Some scholars refer to this type of administrative procuratorial supervision as "extra-litigation administrative procuratorial supervision." Administrative procuratorial supervision also has certain boundaries and generally does not directly involve the supervision of whether citizens comply with the law.
 

Based on the above understanding, this article believes that the pre-litigation procedure is merely a means for procuratorial power to supervise administrative power, and pre-litigation procuratorial suggestions are just one way of exercising administrative procuratorial supervision. Therefore, the pre-litigation procedure is an activity where procuratorial organs supervise administrative actions and urge lawful administration. Due to the unclear role positioning and purpose of the procuratorial organs in the pre-litigation procedure, the content of procuratorial suggestions tends to be overly specific, involving too many administrative measures for remedying public interests, while overlooking the supervision of some abstract administrative actions.