环境行政公益诉讼诉前程序中“不履行法定职责”的司法认定

Judicial Determination of “Failure to Perform Statutory Duties” in the Pre-Litigation Procedure of Environmental Administrative Public Interest Litigation

摘要: 在环境行政公益诉讼的司法实践过程中，诉前程序发挥着重要作用，但同时也暴露出诸多问题，特别是在行政机关“不依法履行职责”的职责范围界定、认定标准以及履职期限等方面尤为突出。“不依法履行职责”的范围包涵“违法行使职权”和“行政不作为”。及时回复检察建议仅为程序性义务，不应作为认定行政机关“不依法履行职责”的标准。在行政机关已做出处罚决定但未申请法院强制时，亦不能因此认定行政机关“不依法履行职责”。对于行政机关“不依法履行职责”的认定标准，应采用因果关系理论：若行政机关履行了检察机关认为其应当履行的职责，而环境公共利益所遭受的损害亦不会因此减轻时，则不能认定行政机关不履行法定职责。

Abstract: In the judicial practice of environmental administrative public interest litigation, the pretrial procedure plays a crucial role, but it has also revealed numerous issues, particularly in defining the scope and identification standards of administrative agencies’ “failure to perform duties in accordance with the law” and the time limit for such performance. The scope of “failure to perform duties in accordance with the law” encompasses both “illegal exercise of authority” and “administrative omission”. Responding to prosecutorial suggestions in a timely manner is merely a procedural obligation and should not serve as a criterion for determining whether an administrative agency has “failed to perform duties in accordance with the law”. When an administrative agency has made a punishment decision but has not applied to the court for compulsory enforcement, it cannot be deemed as “failing to perform duties in accordance with the law”. Regarding the criteria for determining whether an administrative agency has “failed to perform duties in accordance with the law”, the causality theory should be applied. If the administrative agency has fulfilled the duties that the procuratorial organ believes it should perform, and the damage to environmental public interests has not been mitigated as a result, then it cannot be determined that the administrative agency has failed to perform its statutory duties.