行政公诉的法理与制度建构——一个法律监督的视角

我国行政公诉不同于西方国家行政公诉的特点,我国行政公诉既是一种公力救济,又具有典型的监督属性,它始终以公权力监督为贯穿主线,体现为对行政权的直接监督、有限监督.从公共利益优先权和公力救济有限性的角度界定行政公诉的范围,将督促行政主体履行职责作为提起行政公诉的前置程序,以节省诉讼成本,提高监督效率.基于检察机关拥有特别的公权力,检察监督具有明显的司法性、专门性、专业性,以及为了防止行政公诉的恣意,诉讼中应当以检察机关负举证责任为原则,行政机关仅对其控制的行政信息情报、规范性文件以及公害案件涉及的高度专业性、技术性问题负责举证.

The Jurisprudence and Institution Construction of Public Administrative Prosecution: A Perspective from the Legal Supervisor

This paper sets forth the constitutional orientation of prosecutorial power in China,based on analyzing different characteristics of public administrative prosecution in China and in the West.Administrative department has a dilation nature and it concerns different aspects of the social fields.This paper considers public administrative prosecution in China as a kind of public relief with a typical property of supervision.Public supervision has an essential nature of public administrative prosecution in China.This paper discusses the boundary of public administrative prosecution from the viewpoint of commonwealth preference and limitation of public relief,urging administrative department to perform its responsibility as a preposition procedure for the purpose of supervisory efficiency and economizing the litigation cost,which can also elaborate the sovereignty and initiative of the administrative department.If the position procedure of public administrative prosecution has no function,the prosecution is the last line of defense of relief.The prosecutorate organization will be present in court to protect the benefit of the country and the society.The law should endow the prosecutorate organization with the power to oppose the judgment,which can strengthen the effectiveness of public relief to prevent regional protectionism and administration of judicial power.The burden of proof in general litigation isn't applicable in public administrative prosecution,as prosecutorate organization holds special public power.In principle,the prosecutorate organization should take on the burden of proof in litigation so as to avoid arbitrariness of public administrative prosecution,as the supervisory of prosecutorate organization has an evidence of judicature,specialization and technicality.Administrative department should only bear the burden of proof on such things as administrative information,normative documents and environmental public nuisance suits which concern high specialization and high technical problems.