Russian Civil Prosecution On Research

It is well-known that Civil Procedural Law of People's Republic of China has been influenced heavily by the former Soviet Union. Whether Civil Procedure Law trial of 1982 law or of the 1991 code has the shadow of civil procedure theory and specific institution of the former Soviet Union;civil proceedings in the procuratorial system is one of them. After the disintegration of the former Soviet Union, Russia implemented a lot of reforms in the legal system and formed a unique contemporary Russia legal system. This paper looks into the civil prosecution system of Russia,observes and analyzes the nature of Russian civil procuratorial power and the role of procuratorial organs, as well as its functioning through historical and comparative studies, and other methods. This paper also analyses the points on which China's civil prosecution system may draw, and proposes a rough proposal to improve China's civil prosecution system.This paper is composed of five chapters. It is of about 16 thousands words. The main content of each chapter is as follows:Chapter one-"attributes of prosecutorial power" is divided into two sections. Section one is the fositioning of the nature of prosecutorial power. In Russia, although the debate about the status and role of the procuratorial organs in the system of the state organs has never ceased, there is a basic consensus: the supervising position of the procuratorial organs is unshakable. This is not only confirmed by a clear legal provision, but by a consensus reached by the sectors of theory and practice. The discrepancy of various schools of theories focus on in which branches of power the supervising authority should be vested . Similar to Russia, the Chinese scholars also have different views in the attributes of prosecutorial power. But it is different from Russia in that the supervision role of the procuratorial power is not the consensus of scholars. Based on the introduction of different theories , with the Russian experience ,the paper proposes the definition of the nature of the procuratorial power: in the existing political system and the context of the Constitution,the procuratorial power is the power of a supervisory nature. At the same time, the paper argues that the procuratorial supervision is the specific legal supervision, and supervision of procedures.Section two analyses the connotation of the civil procuratorial power. This section argues that the connotation of the civil procuratorial power of Russia experienced the switch from the connotation of the external supervision to the external supervision coexisting with the internal supervision, and the authority of the Attorney-General experienced the switch from the overall supervision to the trial to today's limited and conditional supervision . In contrast, in China traditional procuratorial supervision methods mainly existing in the form of appealing is increasingly challenged. New procuratorial supervision methods coming from the practice is in an awkward position because of fuzzy legal status . It is inevitable to give the new approach to the appropriate legal status.Chapter two—"basic theories of civil prosecution" mainly discusses the theoretical basis of the procuratorial organs intervening in civil procedure. Section one mainly explains the history of the system—Lenin's legal supervision thinking. Procuratorial organs participating in civil procedure is an important component of Lenin' s legal supervision thinking. Its essence is to strengthen legal supervision, to expand the state's intervention in private, to achieve unity of the legal system. It can be said that Lenin's ideological and legal supervision is an important theoretical basis of the former Soviet Union and China's procuratorial system established.Section two describes the theoretical disputes about the procuratorial organs involving civil procedure. After the disintegration of the former Soviet Union, Lenin' s legal supervision thinking was challenged. The supervision of the procuratorial organs began to be doubted and criticized. Courts started to oppose the procuratorial organs in the supervision of judicial activities. The view of procuratorial organs intervening the civil proceedings is derogated. Russia's new Code of Civil Procedure eventually take a compromise position, allowing the procuratorial organs to intervene in the civil proceedings, but reducing its original power. Similar to Russia , the Chinese civil prosecution system has also experienced the process from being supported to being doubted. In the 1980s, before judicial reform, the justification and rationality which the procuratorial organs interventing civil procedure had not be questioned. Along with the continuous deepening of the judicial reform, whether the procuratorial organs should intervene civil procedure has increasingly been questioned. Based on understanding and analyzing various theories, the paper demonstrates the necessity of the procuratorial organs participating in civil proceedings from two aspects: constitution and practice.Based on the statement in Section Two about the necessity of the procuratorial organs involve in civil litigation,Section Three analysis of the relationship between the procuratorial organs and courts, and that between the parties to the proceedings . Modern civil trial has built its basic structure on the power of trial and right of litigation .When the procuratorial power enters into civil process, the relationship between prosecutorial power , the power of trial and right of litigation should be taken into account .Without prejudice to the basic structure of modern civil trial litigation, under the premise of maintenaning judicial independence the reasonable roles of procuratorial power should be sought. In Russia, with the promulgation and implementation of the new Code of Civil Procedure the court and the parties have gradually shaken off the procuratorial organs's supervision and control over activities in civil procudures, becoming more independent. Procuratorial organs also change from the supervisors to the proceedings participants, the representative of national interests and the interests of the citizens. However, China's procuratorial system sticks to the traditional concept of supervision ,and then encounters conflict and friction with the practice .To meet the trend of the times, it is imperative to reform. The paper further believe that the changes of supervision ideas should include the following: firstly, the procuratorial organs should be changed from supervisors to role of the participants 1:0 achieve the inside supervision; secondly, the supervision of the procuratorial organs shoulded be changed from emphasizing on substantive supervision procedural supervisionto soften; Thirdly, the procuratorial organs involved in supervision should aim at ensuring the effective implementation of the power of trial and right of litigation.Chapter Three—"activatevating mechamsm of procuratorial system of civil procedure "mainly focuses on the way of the procuratorial organs to file a civil lawsuit .The procuratorial organ takes the initiative to file a lawsuit in the Russian history is an important component of its proseratorial but also is the main way in which procuratorial organs play its role.Section One mainly demonstrates the scope for the procuratorial organs to file a lawsuit. Under the influence of comprehensive intervention by the State thinking in the former Soviet Union period, the procuratorial organs can file a lawsuit in the area of civil litigation in any type and nature of the case . The Soviet Union Civil Procedure Code in general only provides the scope for the procuratorial organs to bring a civil action . The procuratorial organs are given the right to mitiate a civil action under the circumstances where it is necessary to safeguard the national interests, the interests of the community as well as the interests of the citizens. However, the procuratorial organs have the discretion to decide the scope and types of cases to be sued by the practice. Compared with the previous Civil Procedure Code, the most prominent change in Russia Civil Procedure Code in 2003 is to detail the cases which procuratorial organs can sue for whose interests ,and it is the first time that the litigation provides the procuratorial organs is empowered to file a civil lawsuit to safeguard the interests of "people of uncertainty scope ".The Legal term such as national interests, social interests of the wording is no longer used. But the legislation is not clear on how to understand the concept, as well as what the due reasons are that citizens are unable to personally protect their own rights, as well as to what degree that citizens are unable to personally protect their own rights. Being different from Russia, China's Civil Procedure Code does not require prosecutors to file a lawsuit. But from the history and reality point of view, it is imperative to empower the procuratorial organs to file a lawsuit. On the issue of the scope procuratorial organs file a civil lawsuit, the paper maintains that civil cases meeting certain conditions can be sued by the procuratorial organs: Firstly, the existence of a civil offence. Secondly, the ciyil offence violate interests of the state and the community or endangers, the interests of the state and the community. Thirdly, in the circumstances that national interests of the state and the community are violated or endergered, the law stipulats that the procuratorial organs shall exercise their rights to initiate the action on the party empowered by the law fails to intiate the action, or the law does not provide who shall exercise of right of irritating the action.Section Two discusses the status of the issue the procuratorial organs in a lawsuit. It is a fairly controversial issue of the positioning of the procuratorial organs ina lawsuit. The fundamental reason behind the academic debate is: the procuratorial organs files a lawsuit to the court in order to safeguard the interests of others ,thus its acts is similar to the plaintiff's conduct. However, in accordance with the the literal meaning of law he is not the plaintiff. the Russian mainstream view thinks the procuratorial organs are not in the parties procedural sense, nor the plaintiff at any time, he has an independent status in the case. Procuratorial organs is the country's representative meanwhile reforming the supervision functions. The paper maintains that the clear positioning of the procuratorial organs reguires to distinguish the legal status of the procuratoring organs when filing the civil lawsuit at first. Secondly, although a civil lawsuit filed by procuratorial organs is unlike ordinary civil proceedings because of the uniqueness of initiator, it remains to be civil lawsuit, and is subject to the basic structure of Civil Procedure, following the basic principles of civil litigation.Section Three discusses the main procedural issues arising from filing a lawsuit by the procuratorial organs. Procuratorial organs filing a lawsuit is different from the ordinary civil proceedings because of the initiator .Therefore, if the procedures problem arising from filing a lawsuit by the procuratorial organs cannot be properly solved, and that even if the legislation has given the procuratorial organs the right to file a lawsuit, due to the difficulty of operation in practice such a right will be like castle in the air. The section analysizes the issues on whether the court accept the civil lawsuit filed by procuratorial organs, the jurisdiction of cases, whether counterclaims to the procuratorial organs is allowed, the possibility of mediation for the case brought by the procuratorial organs, and whether the procuratorial organs should bear the cost of litigation.Chapter Four—"the Crown system mechanisms involved in the matter," gives a brief introduction to operating mechanism Russia procuratorial organs participation in the civil case others have begun for the purpose of drawing conclusions. And that is very similar with our procuratorial proposals ,the nascent manner the procuratorial organs involved in civil lawsuit . The chapter also propose establishing and perfecting China's procuratorial proposals system as a reference object of procuratorial conclusions.In accordance with the provisions of civil Russian law, the procuratorial organs can directly initiate the lawsuit in addition , they could present conclusions for the purpose of participation in the proceedings. Compared with the Soviet era, the main changes Russia involved in the mechanism reflect on the one hand that procuratorial organs can draw conclusions of the scope of the case, on the other hand reflect the operation in the specific procedures. Though Russian Code of Civil Procedure retains the right of the Attorney-General to draw conclusions, strictly limiting the right the Attorney-General to exercise , and clearly providing the list of the type of cases the Attorney-General to draw conclusions .As for the specific procedures, first of all, Russian Code of Civil Procedure abolished the provisions that procuratorial organs may enter litigation at any stage of the proceedings. Secondly, the manner the procuratorial organs access to the proceedings, judicial practice tend to involve procuratorial organs into the proceedings because of being"invited". Moreover, the time the procuratorial organs have made conclusions changing from the conclusion of original court debate to the conclusion of trial, prior to the court debate. Althoughinfluenced on substantive matters by strengthened dominant position of the court, as well as party autonomy thinking, the procuratorial organs receive certain restrictions in the scope of cases, the way involved into the proceedings, as well as the time drawing conclusions , the procuratorial conclusions system will be retained because it aims at safeguarding its national and the public interest of the community , ensuring the citizens to abide by the law and protect the legal interests of citizens. Therefore, the procuratorial organs can propose the conclusions on how to adjudicate the cases without damaging judicial independence, as well as the rights of the parties.In the 1950s China's drew on the experience of the Soviet Union, proposed and implemented a prosecution suggested that attorney forms of activities, and then was repealed. Today the procuratorial proposals in the civil procuratorial work universally applicable originated from practice. The fact shows that procuratorial proposals on the one hand have an actual necessity existence , on the other hand also shows that procuratorial proposals is still a very imperfect system and is the state system in the formation and development. It is difficult for the procuratorial proposals to play its due role because of issues lacking legal basis, clear effectiveness, and its narrow but confusing scope, as well as standardized procedures,Russia's system involved in the mechanism provides a similar reference example for China's reform. The paper holds that China's procuratorial proposals should develop along the road of the being statutory system ,being independent of, and being clear in the scope of application.Chapter Five—"relief mechanism for civil prosecution" focuses on the development and evolution of the relief mechanism. The most striking change in Russian civil procuratorial system is that the procuratorial organs can only appeal cases thus have participated in their hearing. It can be said that restricting the scope of appeal by the procuratorial organs not only shows that action principle plays a greater role within the field of civil procedures , but also shows attitude and position that the Russian civil procuratorial system is indifficulties maintains the Court's independence and the parties disposition. During the Soviet period, the procuratorial organs had not the restrictions for the period and reasons for appeals, and in trial process of the appeals, as the sinitiator of the monitoring procedures, procuratorial organs still has the right of conclusions. The dominant position of the procuratorial organs was thourougly illustrated! With the promulgation and implementation of the new Code of Civil Procedure 2003 ,the Russian system of civil appeal has quietly changed. One of the most notable changes is: the procuratorial organs can only participate appeal in cases they have partipated in the hearing of their cases. Compared with the Soviet era, the scope of the case which the procuratorial organs may appeal has obviously been limited. The view of limiting the role and functions of the procuratorial organs in civil procehures has also gained the support from the Supreme Court of Russia.Section Two describes the crisis and challenges the relief mechanism face. The paper maintains that the civil appeals system has been questioned and the defects linked with the system itself as well as the discord between civil appeal system with other systems. On the outside, because civil appeal system challeage the judgement which has come into force, therefore there is strained relations between res judicata disposal and the right of the parties. Inside, as a result of the unlimited scope of the appeal case, the unlimited number,of appeal the lack of procuratorial organs appeal protection mechanisms, unclear scope of the object of theappeal, and other factors, the conflict grows between courts and the procuratorial organs.Section Three, based on the discussion of the above two sections, analyzes the inheritance and development of Russian relief mechanism for civil procedures and concludes that the reform of Russian in this aspect has been carried out with the principle of disposal as the starting point.The roform has established comparatively perfect provisions on the competence of courts in hearing cases and related procedures. These provide constructive ideas for China to reform relief mechanism for civil procedures.