关键词: 举报投诉人, 保护规范理论, 主观公权, 资格判定, 原告

Abstract:

The plaintiff qualification of the complainant is a hot topic in the recent administrative trial practice in China. The new judicial interpretation attempts to delineate the qualifications of plaintiff by distinguishing the complainant for private interest and public interest. However, from the perspective of the theory of subjective public rights and protection norms, citizens do not have the generalized right to request administrative enforcement of the law. The right to report clause does not give the complainer the subjective public right to apply the administrative organ to intervene in the concrete case and make specific treatment. Therefore, not only the complainants for the public good have no plaintiff qualifications, but even the complainants for the personal interests do not necessarily have plaintiff qualifications. From the perspective of the protection norm theory whether the "private interest" that the complainants want to defend belongs to the plaintiff qualification of the complainant is a hot topic in the recent administrative trial practice in China. The new judicial interpretation attempts to delineate the qualifications of plaintiff by distinguishing the complainant for private interest and public interest. However, from the perspective of the theory of subjective public rights and protection norms, citizens do not have the generalized right to request administrative enforcement of the law. The right to report clause does not give the complainer the subjective public right to apply the administrative organ to intervene in the concrete case and make specific treatment. Therefore, not only the complainants for the public good have no plaintiff qualifications, but even the complainants for the personal interests do not necessarily have plaintiff qualifications. From the perspective of the protection norm theory whether the "private interest" that the complainants want to defend belongs to the subjective public right or not, needs to resort to the law norms on which the administrative organ makes the concrete act, and to judge whether the norm is purely or simultaneously for the protection of a private interest of the complainants.

Key words: complainant, protection norm theory, subjective rights, qualification judgement, plaintiff