2015年，经过全国人大授权，13个省市开展了为期两年的检察机关提起行政公益诉讼试点工作。虽然这一制度被许多人认为是检察机关履行职能的题中之义，是维护公共利益、促进依法行政的重要一步，但制度合理性以及运作情况仍需探讨。在两年试点即将结束之际，有一个问题需要回答：检察行政公益诉讼是去是留？文章的基本观点是：不适合继续授权。首先，从制度原理来讲，检察机关的宪法定位不符合公益诉讼的本质。理由在于公益诉讼的本质是公民共同行为的组成部分，是以私权制衡公权的方式，本就应该跳脱传统公权力制衡的做法。而检察机关的宪法定位是法律监督机关，作为起诉者既背离了公益诉讼的本质，也会因诉讼中的双重身份导致角色困顿。其次，从制度实践看，试点各环节暴露出了不少问题。在案件线索方面，案件线索匮乏且易垄断，检察机关内部线索横向移送机制难以起效。从案件选择看，高度集中于环境资源领域，这既有最高检指示的因素，也与该类案件简单、容易起诉有直接关系。在诉前程序，依法履职的判断标准存疑，检察建议有滥用现象，并不能体现制度优越性。从诉讼结果看，除了调解结案、撤诉的，检察机关提起诉讼的胜诉率为100%，过高胜诉率易导致滥诉、职权扩张，且辐射效应实际有限。从检察机关自身积极性来说，积极性不高表现在任务式办案模式以及对制度的认可度低。这些问题，反映出由于受到地方政治生态中利益格局的影响，检察机关难以通过行政公益诉讼的方式回应社会期待。该制度极可能只是一时之热，难以长久。最后，从监督行政机关依法行政、维护社会公共利益的目的来看，完全可以考虑其他更经济、更有效的途径。赋予社会组织提起行政公益诉讼是一个可行的尝试。中国社会组织的发展前景良好，也在民事公益诉讼中积累了一定的经验。对于阻力明显、社会组织的信任危机、经费及能力不足等问题，通过内部整顿和外部制度支持可以有所改善。
In 2015, after the authorization of the National People's Congress, a two-year pilot work of the administrative public interest litigation brought by procuratorial authorities started in 13 pilot provinces and cities. Although this system is considered to be an inherent part of procuratorial functions and an important step in protecting public interests and promoting administration according to law,but the rationality and operability of it still need to be explored. At the end of the two-year pilot work, there is a question that needs to be answered,that is whether it continue to have? The basic idea of the article is not.. First of all, from the institutional principle, the constitutional position of the prosecution authority and the essence of public interest litigation do not fit each other. The reason is that public interest litigation is by nature a part of collective actions by citizens, which is a way to contain the administrative power by private rights and should not be in charge of the administrative power. Additionally, as the constitutional position of the procuratorial authority is the legal supervision authority, it would deviate from the essence of public interest litigation, and also get stuck in the dilemma of dual role in litigations.Second, from the practice of the system, there are a lot of problems in the pilot work. For the part of case clues, there tends to be a lack of clues and a tendency of monopoly, and thus the internal horizontal clue transfer mechanism of procuratorial authorities cannot work. For the part of case choice, the fields of environment and resources are too highly concentrated on, which results from the guide by Supreme People's Procuratorate and from that these cases are simple and easy to be prosecuted. Then for the pre-litigation procedure, the criteria to judge whether a performance of administrative responsibility is in line with law are suspected, prosecutorial suggestions tend to be abused, and it can not reflect the superiority of the system. Moving on to the outcome of public interest litigations, prosecutions brought by the procuratorial authority have a winning rate of 100%, regardless of settlements by mediation and withdrawals of actions. Therefore, there is a concern of indiscriminate prosecutions and power expansions, with limited radiation effect. Furthermore, from the aspect of procuratorial authorities themselves, their passivity is reflected in the task-based performance mode and in the low recognition of this system. These problems reflect that it is difficult for the prosecution to respond to social expectations through administrative public interest litigation ,due to the local political interest pattern. The system is difficult to long.Finally, from the purpose of supervising the administration of administration according to law and maintaining the public interest, we can consider other more economical and effective ways. Authorizing social organizations the right to start administrative public interest litigations would be a feasible attempt. Chinese social organizations have a good prospect of development and have accumulated some experience through civil public interest litigations. Issues like obvious obstacles, the trust crisis to social organizations, lack of funding and sufficient capability could be improved by internal rectifications and external institutional support.
