环境行政公益诉讼中“不依法履行职责”的认定及完善

Identification and Improvement of “Failure to Perform Duties in Accordance with the Law” in Environmental Administrative Public Interest Litigation

摘要: 行政机关在环境公益诉讼中“不依法履行职责”常常是控辩双方的争议焦点。其中，行政机关的职责范围应区分监管职责与管理职责，规范性法律文件所规定的行政机关职责也应当被其遵守，对规范性法律文件的审查可以参考《最高人民法院关于适用<中华人民共和国行政诉讼法>的解释》第148条，《办案规则》第72条等确立的审查标准；行政机关的履职期限在两个月的基础上因案件重大复杂，经行政机关负责人或者上级行政机关批准可以弹性延长，鉴定、听证等时间应当排除在行政机关履职期限当中，行刑衔接的案件，刑事司法程序结束后需要转入行政诉讼程序的，行政机关的履职期限可以重新计算；行政机关在环境公益诉讼中“不依法履行职责”应选择结果标准。

Abstract: “Failure to perform duties in accordance with the law” in environmental public interest litigation is often a contentious issue between the prosecution and defense. Among them, the scope of responsibilities of administrative organs should distinguish between regulatory responsibilities and management responsibilities, and the responsibilities of administrative organs stipulated in normative legal documents should also be followed. The review of normative legal documents can refer to the review standards established in Article 148 of the Interpretation of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People’s Republic of China and Article 72 of the Case Handling Rules; The performance period of administrative organs can be flexibly extended on the basis of two months due to the significant and complex nature of the case, with the approval of the head of the administrative organ or the superior administrative organ. The time for appraisal, hearing, etc. should be excluded from the performance period of administrative organs. For cases that are linked to execution and need to be transferred to administrative litigation procedures after the criminal justice procedure is completed, the performance period of administrative organs can be recalculated. Administrative agencies should choose outcome criteria for “failure to perform their duties in accordance with the law” in environmental public interest litigation.