Perspective | Research on Pre-litigation Procedures of Administrative Public Interest Litigation (Part 1)
Published:
2024-12-09
The pre-litigation procedure is an important component of the administrative public interest litigation system, characterized by its necessity as a prerequisite and its independence. As the administrative public interest litigation system has developed, the high settlement rate of pre-litigation procedures has played a significant role in protecting damaged public interests. However, during the operation of the procedure, issues such as the excessively high evidentiary standards for the investigation and verification powers of the procuratorial organs and the overly specific requirements for the content of pre-litigation procuratorial suggestions have become stumbling blocks to the development of the pre-litigation procedure. The relatively simple legislative norms for the pre-litigation procedure can no longer meet the needs of its normalization in judicial practice. Therefore, it is urgent to establish detailed and standardized regulations for various issues related to the pre-litigation procedure.
The pre-litigation procedure is an important component of the administrative public interest litigation system, characterized by its necessity and independence. As the administrative public interest litigation system has developed, the high closure rate of pre-litigation procedures has played a significant role in protecting damaged public interests. However, during the operation of the procedure, issues such as the excessively high standards of proof for the investigation and verification powers of the procuratorial organs and the overly specific requirements for the content of pre-litigation procuratorial suggestions have become stumbling blocks to the development of pre-litigation procedures. The relatively simple legislative norms for pre-litigation procedures can no longer meet the needs of their normalization in judicial practice. Therefore, it is urgent to make refined and standardized regulations on various issues related to pre-litigation procedures.
1. The standards of proof for the investigation and verification powers of the procuratorial organs are excessively high.
Currently, the evidence system and standards of proof for administrative public interest litigation mainly refer to the relevant provisions of the Administrative Litigation Law. However, there are no clear legislative provisions regarding the standards of proof in administrative litigation, which leads to the ambiguity of the standards of proof applicable to the administrative public interest litigation system. Theoretically, some scholars categorize the standards of proof from high to low based on the degree of likelihood, dividing them into five major standards: obvious, excluding reasonable doubt, clear and convincing, preponderance of evidence, and likelihood of truth. Although these are the standards of proof for ordinary litigation procedures, in the absence of clear legislative provisions for the standards of proof in administrative public interest litigation, this standard of proof extends to the entire process of the administrative public interest litigation system in practice, including the pre-litigation procedure.
When the procuratorial organs investigate and verify the facts of the case and collect evidence materials during the pre-litigation procedure, they adopt a standard of high likelihood that is sufficient to prove the illegal acts or omissions of administrative organs, the damage to public interests, and the causal relationship between the illegal acts and the damage to public interests. This standard is close to the standard of proof for the facts of the case in general administrative litigation procedures. Moreover, this high likelihood standard of proof used by the procuratorial organs is uniformly applicable to the entire process of the system's operation and all facts to be verified that the procuratorial organs need to clarify. In other words, there is no distinction between the stages of administrative public interest litigation, nor is there a distinction between procedural facts and substantive facts for each fact to be verified, but rather a unified application of the high likelihood standard across all stages and facts.
The phenomenon of this high standard of proof in practice actually stems from the internal self-requirements of the procuratorial system. Although there are no direct provisions regarding the standards of proof in the internal normative documents issued by the Supreme People's Procuratorate, it can be inferred from other articles that there are requirements for a higher standard of proof. For example, the "Regulations on Procuratorial Suggestions" require that when procurators propose procuratorial suggestions for investigation, the facts must be clear and accurate. Additionally, in the "Case Handling Rules" issued by the Supreme People's Procuratorate, it is required that the content of the procuratorial suggestion should be connected with the possible administrative public interest litigation requests. This means that the procuratorial organs are required to raise the accuracy of procuratorial suggestions to the same level as the litigation requests, and achieving such precision in procuratorial suggestions implies that the investigation and verification work conducted by the procuratorial organs before issuing the procuratorial suggestions must be comparable to the standards of investigation and evidence collection in litigation. I believe this is a potential requirement for the standards of proof in pre-litigation procedures, which is excessively high for the standards of proof for the investigation and verification powers of the procuratorial organs. Therefore, in the relevant legal norms for public interest litigation, the standards of proof for investigation and verification powers not only lack clear and specific provisions but also propose higher proof requirements in the few indirect provisions available.
2. The content requirements for pre-litigation procuratorial suggestions are overly specific.
In the judicial practice prior to the issuance of the "Regulations on Procuratorial Suggestions" in 2019, due to the lack of unified elements in the norms for procuratorial suggestions, the content of procuratorial suggestions did not reach a unified model. Some procuratorial organs adopted a general approach, simply stating that the administrative organ should investigate and deal with the matter according to relevant laws and regulations or suggesting that the administrative organ perform its regulatory duties according to the law, without specifying which laws and regulations the administrative organ should follow, nor providing excessive specific guidance. The weakness of general procuratorial suggestions, which lack strong persuasiveness and operability, reduces their effectiveness. On the other hand, some procuratorial organs adopted a relatively specific model, listing illegal facts, legal bases, and other elements, and also providing detailed suggestions on the measures that the administrative organ should take. For example, in the case of the Chongming District People's Procuratorate urging the town government to perform its duties in an administrative public interest litigation case, the Chongming District People's Procuratorate issued procuratorial suggestions with specific governance recommendations for the administrative regulatory agency regarding the prevention of water pollution in polluted rivers. Furthermore, some procuratorial suggestions even specified the range of administrative penalties. After the issuance of the "Regulations on Procuratorial Suggestions" in 2019, these issues were improved, requiring procuratorial suggestions to be clear and specific, stating the specific content of the suggestions. However, there was no distinction made between the types of procuratorial suggestions, but rather a general requirement applicable to all types of procuratorial suggestions. Subsequently, in the "Case Handling Rules" issued by the Supreme People's Procuratorate in 2021, the requirements for procuratorial suggestions in the pre-litigation procedures of administrative public interest litigation were separately stipulated. Article 75 clearly states the elements that procuratorial suggestions should possess, proposes specific content for the suggestions, and requires that the content of the procuratorial suggestions should be connected with the possible administrative public interest litigation requests. This indicates that the Supreme People's Procuratorate requires all levels of case-handling organs to propose procuratorial suggestions with clear suggested content. This provision addresses the past inconsistency in the detail of suggested content, but it also raises some questions about whether requiring procuratorial organs to clearly propose specific suggested content in all procuratorial suggestions may lead to excessive interference of procuratorial power in the exercise of administrative power, restricting the administrative actions taken by administrative organs in managing specific public interests without leaving room for discretion. This is not conducive to the balance of the "functional order" between procuratorial power and administrative power, exceeding the limits of the legal supervisory functions that procuratorial organs should bear in pre-litigation procedures.
3. The scope of pre-litigation procuratorial suggestions is not clearly defined.
In the operation of the administrative public interest litigation system, there has always been a question regarding the scope of pre-litigation procuratorial suggestions, namely whether the procuratorial organs should issue procuratorial suggestions for supervision when they discover that other normative documents of administrative organs violate higher laws or other illegal situations during the handling of public interest litigation cases, and what type of procuratorial suggestions should be issued.
In practice, the actions of procuratorial organs confirm that the answer to the first question is affirmative. A typical case is the public interest litigation case involving Jinze Real Estate Co., Ltd. in Changde City, Hunan Province, which failed to pay land transfer fees. The Supreme People's Procuratorate has regarded this case as a typical case. The role of typical cases is not entirely the same as that of guiding cases; guiding cases have strong guiding and referential significance, while typical cases more often indicate the direction of public interest litigation. However, the problem is that such types of cases are not numerous, and this case will change the procuratorial suggestions that should be issued in the pre-litigation procedures of administrative public interest litigation into social governance-type procuratorial suggestions. Whether this practice complies with the relevant requirements regarding pre-litigation procedures in the Administrative Litigation Law and the types of procuratorial suggestions in the "Regulations on Procuratorial Suggestions" remains to be explored. However, in practice, there have already been cases where illegal abstract administrative behaviors were supervised through administrative public interest litigation, yet there has been no positive response in laws, judicial interpretations, and relevant normative documents. Considering the arduous development process of the system where some abstract administrative behaviors can be subject to case acceptance, the relevant legal norms for public interest litigation should provide prominent provisions and explanations regarding whether abstract administrative behaviors are included. If not specifically stated, it would theoretically be assumed to be included, while in practice, due to the lack of specific provisions, administrative organs may interpret that pre-litigation procuratorial suggestions do not include abstract administrative behaviors.
Therefore, in the absence of special provisions in laws and judicial interpretations, the prosecutorial authorities in practice have not handled a large number of cases in the field of public interest litigation that target certain abstract administrative actions as illegal. The potential harm of illegal abstract administrative actions is even greater, which should not be overlooked. For example, in this case, the author believes that this is an exploration of the prosecutorial recommendations in the field of abstract administrative actions during the pre-litigation procedure, but there are no clear and specific provisions in legislation. Since the exploration and establishment of the administrative public interest litigation system, it has mostly been practice-driven, leading to legislative improvements. Therefore, it is necessary to improve the supervision of certain abstract administrative actions by the prosecutorial authorities within the administrative public interest litigation system and to clarify the specific scope of pre-litigation prosecutorial recommendations in legislative norms.
Since the Fourth Plenary Session of the 18th Central Committee proposed "exploring the establishment of administrative public interest litigation," it has gone through authorization decisions, top-level design, pilot programs, legal amendments, the issuance of relevant judicial interpretations, and case handling rules, leading to the improvement of the administrative public interest litigation system at the institutional level. It can be said that administrative public interest litigation has developed progressively. The role of the pre-litigation procedure in the entire field of administrative public interest litigation is extremely prominent, and the goal of reducing the litigation rate through the pre-litigation procedure, which was pursued at the beginning of the system design, has been largely achieved. However, the law cannot completely cover and resolve the practical problems that arise in the operation of the administrative public interest litigation system, nor can it provide detailed guidance. Especially in the operation of the pre-litigation procedure, due to the involvement of the functions and value trade-offs of the two major state powers—administrative power and prosecutorial power—there are many discrepancies between the two on various issues. Therefore, it is necessary for laws and judicial interpretations to establish standardized and refined operational standards to address the aforementioned issues.
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