Journal:Journal of Guizhou Normal University( Social Science)
Key Words:administrative public interest litigation; illegal exercise of authority; starting standard; risk prevention; actual damage
Abstract:How to establish the starting standard is a core issue of the administrative public interest litigation system of illegal exercise of authority. In view of this problem, the law standard makers did not give a clear attitude in determining the starting standard, and constantly changed between "behavior standard" and "result standard". However, after a typification analysis of 68 judicial decisions, it is found that there are no doubts in the practice level of the prosecution service, based on the standard of substantial damage to the public interest. In order to balance the relationship between the above two sides, the three-stage method of judging the starting standard is put forward: Firstly, the relationship between "forced public interest litigation" and "self-reliance public interest litigation" is based on the correlation between administrative acts and public welfare damaged results in the illegal exercise of power. Secondly, to make the difference between risk prevention and actual damage standards, "force-based public interest litigation" in accordance to the actual damage standard, while "self-reliant public interest litigation" to adopt the "hourglass-type" standard, that is, the original two-stage judgment standard for transformation, pre-litigation risk prevention standards, litigation stage to take actual damage standards. Thirdly, through the analysis of laws and regulations to achieve the standardization of the starting standard.
Note:CSSCI扩展版
Indexed by:Journal paper
Discipline:Law
Document Type:J
Issue:3
Translation or Not:no
Date of Publication:2022-05-15