Correctly grasp the deadline for filing administrative public interest litigation-瞭望新时代网

Correctly grasp the deadline for filing administrative public interest litigation

2024-09-26

If the procuratorial organ initiates an administrative public interest lawsuit, there is a gap between the time of filing the lawsuit and the time when the infringement occurred or the procuratorial suggestion was issued, and the administrative organ objectively needs some time to perform its duties. Therefore, how to apply the deadline for filing the lawsuit has become a controversial issue. In order to achieve a balance between judicial restraint, stability of legal order, and protection of social public interests, there are three main theoretical views on the statute of limitations for administrative public interest litigation: the theory of no statute of limitations, the theory of ordinary statute of limitations, and the theory of special statute of limitations. Looking back at relevant research results, the academic community has formed the theory of inclusiveness and independence based on whether administrative public interest litigation can be included in China's current administrative litigation system. At present, the construction of China's administrative public interest litigation system generally adopts the approach of inclusiveness, and the provisions on the statute of limitations for filing administrative public interest litigation apply. In recent years, with the development of prosecutorial public interest litigation practice, prosecutorial public interest litigation has gradually become an independent litigation form distinct from civil litigation and administrative litigation. At present, specialized legislation for prosecutorial public interest litigation is being promoted, and the independent theory has returned to the perspective of scholars. There are two viewpoints within it. One viewpoint advocates that administrative public interest litigation should be completely independent of traditional administrative litigation and established separately; Another viewpoint is that the administrative public interest litigation system should be partially independent of the current traditional administrative litigation. Therefore, how to grasp the deadline for filing administrative public interest litigation should be clarified. In the author's opinion, under the current framework of the Administrative Litigation Law, if the administrative organ still fails to act after issuing prosecutorial suggestions, it is not subject to the statute of limitations for prosecution; After being advised and urged by the procuratorial organs, administrative organs that actively take action are generally subject to a six-month prosecution deadline, but if the procuratorial organs file a lawsuit to confirm invalidity, it is not subject to the prosecution deadline. The specific situation is as follows: firstly, if the administrative organ still fails to act after the procuratorial organ has issued the procuratorial suggestion, it is not subject to the statute of limitations for prosecution. The classification of administrative actions based on the degree of initiative of the actions is based on the distinction between actions based on authority and actions based on application. The object of administrative public interest litigation initiated by the procuratorial organs is the administrative organs that have supervisory and management responsibilities in a specific field, but illegally exercise their powers or fail to act. In the vast majority of cases, the above-mentioned administrative actions have no direct interest relationship with citizens, legal persons, and other social organizations, and belong to acts based on their powers. A court ruling holds that when a procuratorial organ initiates an administrative public interest lawsuit, it should apply Article 66 of the Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China, which is limited by a six-month filing period. But this provision only stipulates the deadline for filing a lawsuit based on the application for administrative action, and cannot be applied to cases of administrative inaction based on authority. The provisions of this article shall not apply to administrative public interest litigation initiated by the procuratorial organs. As for whether cases of administrative inaction based on authority are subject to a statute of limitations for prosecution, the law has not made clear provisions, and there is also controversy in academia. Some people believe that administrative inaction belongs to a type of administrative action, and its legal consequences are not fundamentally different from administrative actions. Necessary restrictions should also be imposed on the administrative litigation rights of administrative counterparties, urging them to exercise their rights in a timely manner and avoiding long-term uncertainty in relevant administrative legal relationships. This is the natural meaning of protecting litigation rights. However, the Supreme People's Court (2018) issued Administrative Ruling No. 9030, stating that "in general, as long as an administrative agency has a statutory duty that it should perform according to its authority, it continues to bear as an obligation, and this obligation does not disappear due to the administrative agency's failure to perform. Especially when the administrative counterpart has submitted an application for performance to the administrative agency, the administrative agency should perform it in a timely and effective manner. In addition, the administrative agency's statutory duty that it should perform according to its authority shall not be transformed into a statutory duty that it should perform according to the application due to the administrative counterpart's performance application." Therefore, after issuing a prosecutorial recommendation, if the administrative agency still remains passive and does not make any administrative decision, its obligation to perform shall continue. The existence status shall not be eliminated due to the negligence of administrative organs in performing their duties, It will not be transformed into a duty based on application due to the supervision of prosecutorial suggestions, and of course, it is not limited by the statute of limitations for prosecution. Secondly, if the administrative organ actively acts after being urged by the procuratorial suggestion, the procuratorial organ shall file an administrative public interest lawsuit within six months from the date of knowing or should have known that the administrative action was taken. Although compared to general administrative litigation, administrative public interest litigation is no longer limited to the stability of the law and the protection of private interests, but more prominent in its public interest nature, the rationality and legitimacy of the administrative litigation deadline system cannot be denied just because of the special nature of public interest protection. Therefore, some argue that for objective litigation primarily aimed at maintaining objective legal order, setting a statute of limitations is more conducive to maintaining the stability of the law. Public welfare damages often have the characteristics of strong concealment, significant damage consequences, and long recovery time. If the procuratorate fails to exercise its right to sue in a timely manner, the national interests and social public interests that have been infringed will inevitably be difficult to obtain timely relief and repair. Therefore, the procuratorial organs need to adhere to the principle of efficiency when filing administrative public welfare lawsuits. If the administrative organ actively acts after being urged by the procuratorial organ, the procuratorial organ shall conduct a timely and comprehensive review. For administrative organs that fail to fully and comprehensively perform their duties or make illegal administrative decisions, the procuratorial organs shall comply with the general provisions of the Administrative Litigation Law on the time limit for filing a lawsuit, and file an administrative public interest lawsuit within six months from the date of knowing or should have known that the administrative action was taken. There is currently controversy in the academic community regarding how to determine the specific starting point. Due to the legal obligation of administrative agencies to provide written responses to prosecutorial agencies, prosecutorial agencies have the responsibility to follow up and investigate the progress of their performance. In my opinion, the starting point is generally the date when the administrative agency's written response regarding their performance is delivered to the prosecutorial agency. If the administrative agency has not responded, the starting point is the date when the prosecutorial agency conducts follow-up investigations and knows or should know about the accused administrative action. At the same time, attention should be paid to fully utilizing the suspension system of the prosecution deadline. For administrative organs that have made administrative decisions or formulated rectification plans within the statutory performance period, but are unable to rectify them due to objective obstacles such as legal provisions or emergencies, the procuratorial organs shall suspend the review in accordance with the law and resume the review after the obstacles are eliminated. According to the provisions of the Administrative Litigation Law on the suspension of the deadline for filing a lawsuit, the delay in the deadline for filing a lawsuit at this time is not due to the fault of the procuratorial organ itself, and the time delayed should not be counted towards the deadline for filing a lawsuit. In the vast majority of cases, administrative agencies can only close the case by rectifying the illegal content in place after being advised and urged by prosecutors. However, according to the Administrative Enforcement Law, most administrative agencies do not have the power to enforce administrative decisions on their own. They can only apply to the court for enforcement after the expiration of the administrative reconsideration or litigation period for the counterparty. During this period, if the counterparty disagrees with the administrative decision and applies for reconsideration or initiates an administrative lawsuit, they may also face suspension of enforcement. Therefore, in the process from making administrative decisions or rectification plans to effectively repairing public welfare, the time delayed due to objective obstacles should not be included in the statute of limitations for prosecution. After the reason for suspending the examination is eliminated, the procuratorial organ shall immediately resume the examination and decide whether to prosecute. To enhance judicial transparency, both the decision to suspend and resume review shall be served on the supervised administrative organ. Thirdly, if the procuratorial organ initiates a lawsuit to confirm invalidity, it is not subject to the statute of limitations for prosecution. When there is a significant and obvious violation of the law in an administrative act, the administrative act is invalid from the beginning and of course, and the parties who file a lawsuit to confirm the invalidity are not limited by the statute of limitations. This provision also applies to administrative public interest litigation. If there is a significant and obvious violation of the law in the administrative decision or rectification plan made by the procuratorial organ after being urged and urged by the procuratorial organ, the procuratorial organ shall file a lawsuit to confirm the invalidity, and there is no time limit for prosecution at this time. (New Society)

Edit：HAN ZHUOLING Responsible editor：CAICAI

Source：people.com

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