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Civil Public Interest Litigation Under The Perspective Of Comparative Law

Posted on:2010-01-31Degree:DoctorType:Dissertation
Country:ChinaCandidate:S M PanFull Text:PDF
GTID:1116360302957441Subject:Legal history
Abstract/Summary:PDF Full Text Request
Law is the product of human civilization. It arised to meet the demand of social reality and kept improving as the development of society and the advancement of the level of people's cognition. Since 1980's, with the continuous progress of reform and opening-up and socialist market economy with Chinese characteristics in our country, the whole country has been in the period from traditional economy from socialist market economy with Chinese characteristics. During this period, interest subjects have become diversified. As every interest subject pursues benefit, some citizens are immoral and our country's legal systems are not perfect, public interest is violated sometimes. In our country that ruling the country by law has become the basic strategy of governing country, litigation shouldn't exclude the public interest litigation as it is the last resort of right. As the huge impacts that civil public interest litigation bring to the traditional civil litigation theory and the complicacy of the system itself, if our country wants to establish a scientific civil public interest litigation system in legislation, we should do systemic and deep research and have a profound theory as the basis. From the perspective of the author, it is necessary in history that civil public interest litigation would be introduced into our country. However, the reason why until now there is neither progress in the aspect of legislation nor try in the aspect of judicial system is that we academic society didn't provide enough resources to them.Now studies on civil public interest litigation in our country usually point out problems, but few of them solve problems. As public interest litigation relates to both public law and private law, both substantial law and procedural law, it is difficult to make a deep research on whole system. As a result, there are many researches on certain point, but systemic researches are scarce. The author think if we want to introduce civil public interest litigation into China really and establish a scientific civil public interest litigation system with Chinese characteristic, we must consider and discuss from the perspective of history, comparative law, sociology of law, etc. and make the orientation and structure of our country's civil public interest litigation system clear. Then, we provide concrete and feasible system devising in the concrete litigation procedure according to the difference between the civil public interest litigation and current litigation. Our litigation can establish a set of scientific and feasible civil public interest litigation system that corresponds to our country's situations only if we do like that.This dissertation consists of introduction, body and conclusion.The introduction states appearance and meaning of choosing this problem, current research situation, literature review, research methods, structure and innovations of the dissertation.The body is divided into three parts:Part One is research on the basic scope of civil public interest litigation, which is divided into three chapters. Chapter one is introduction of civil public interest litigation, which mainly solves what civil public interest litigation is, what challenge establishing civil public interest litigation will bring to traditional theory and the necessity and feasibility of establishing public interest litigation in our country. Chapter two is public interest and case scope of public interest litigation under the perspective of comparative law, which analyzes and defines public interest and sees case scope of public interest litigation by jumping out of litigation instead of avoiding difficult points. Then, it makes comparative analysis between case scope of public interest and civil public interest in our country nowadays in combination with this dissertation's main topic. Chapter three is representativesande the suiting mode of public interest litigation under the perspective of comparative law. Representatives of public interest litigation are those who can appear in court as representatives of public interest and try to realize public interest. This dissertation concludes that the development of representatives showed the following process by making comparative research of it:from citizen to administrative bodies, then, with the development of national Bureaucratic system, procuratorates appeared and became important representatives of public interest litigation, with the development of society, nation orientation began to become society orientation. Public interest groups play more and more important roles in society. In the field of civil public interest litigation, public interest groups won in the battle to be representatives as public interest litigations. Official representatives as public interest litigations should be the main type among four types of representatives of public interest litigations, so this dissertation made a comparative research to four types of representatives of public interest litigations all over the world. Finally, in combination with the main topic of this disseration, it analyzes the types of civil public interest litigation and the suing modes of civil public interest litigations in our country. So far, this dissertation solves both the basic theory of public interest litigations and draws the basic structure of civil public interest litigations in our country generally.Part Two is comparison of civil public interest litigation systems under the perspective of comparative law, which is divided into five chapters. It mainly makes comparative research to the classic civil public interest litigations all over the world, which provide the basis of the following discussion about restructuring of our country's civil public interest litigations. Chapter four is protection of public interest by multi-persons dispute settlement procedures in foreign countries, which mainly introduces class action in USA, representative action and group litigation in UK, designated litigant system in Taiwan, and compares every system's virtues and shortcomings. Chapter five is the civil public interest litigations started by foreign citizens, which begins discussion and makes evaluation by taking USA's citizen litigation and model litigation as classic examples. Chapter six is the civil public interest litigations started by foreign public interest groups, which mainly discusses and evaluates the group action in Germany, consumers group action and investors group action in Taiwan. Chapter seven is the civil public interest litigations started by foreign government agencies, which mainly discusses the civil public interest litigation started by national bodies in Russia and non-action litigation system started by protecting officials of consumers in Taiwan Chapter eight is foreign procuratorates' attending in civil public interest litigation, which makes comparative analyzes to the systems of procuratorates'attending in civil public interest litigation in every main countries in the world. All of the above chapters have one particular section to make comparative law analysis or discuss the lessons of related civil public interest litigation systems.Part Three is restructuing of civil public interest litigation systems in our country, which is divided into three chapters. Chapter nine is the current legislation and judicial practice of our country's civil public interest litigation, which main makes a whole introduction to current legislation of civil public interest litigation in our country and an arrangement and evaluation to the good try in the judicial practice. Chapter ten is perfection of the current systems, which is the first part of restructuring of our country's civil public interest system. It discusses the defects and perfections to systems of representative litigation, supporting indictment, Civil Suit Collateral to Criminal Proceedings by Prosecutorial Organization and civil public interest litigation started by administrative bodies in combination with knowledges of comparative law that have been discussed in the above paragraphs. Chapter eleven is creation of new rules, which is the second part of restructuring of our country's civil public interest system. It mainly discusses how to establish the system of procuratorates' attending in civil public interest litigation and civil public interest litigation started by citizens and public interest organizations in our country. It also makes deep exploration to some special procedure problems that relate to civil public interest litigation. The conclusion mainly deal with how to prvent public interest being violated, which concludes the following viewpoints:(1)civil public interest litigation must be established, (2)the legislation of civil public interest litigation should absorb broadly and progress gradually, (3)the public's motivations should be launched, (4)public interest litigation should have elements of national intervention, but we should stick to the principle of limited intervention, (5)judicial bodies should change from judicial passivism to judicial activism in order to response to change of social situation.The innovations of this dissertation are the following points:(1)system innovation. It structures the theory system of civil public interest litigations systemically and entirely in our country for the first time. From regulations of representative of public interest litigation to case types and suing modes of civil public interest litigation, from introduction and comparison of many kinds of foreign civil public interest litigation to system structure of our country's civil public interest litigation, it includes history but is realistic, it includes a great deal of introduction and comparison of many kinds of foreign regulations but serves our country domestically, it includes great theory problem of public interest, etc. but is institutional. (2)material supplement. It provides supplement to our country's research material, such as USA's class action, which is a class example of multi-person dispute settlement procedure, has been researched very much in our country, but domestic research materials have not touched anything about it after 2003, just a few materials researched to 2003 although it was revised in 1987,1998,2003 and 2007 after 1966's revision, especially class action fairness of 2005. It was my honor to have a chance to do research in National Chengchi University of Taiwan during my Ph.D study from May 2007 to June 2007. During that period, I collected a lot of materials about Taiwan native judicial system and practice, which includes the first-hand information of designated litigant lawsuit, consumer group action, etc. and some Taiwan legal society's research informations to foreign related regulations, (3)Close to practice, I felt a lot as I have been a prosecuting attorney for thirteen years and seen, experienced and did a lot of judicial practice that procuratorial organs started civil public interest litigatons. So, it has some advantages in the aspect of practical informations and feasibility of system devising.(4)viewpoint innovations. It makes deep analysis to public interest in viewpoint and content, which is helpful to raise the level of research to the conception of public interest. Gradual researches that are from the development of representative of public interest litigation to the type and suing mode of civil public interest litigation expand the perspective of research to suing mode of civil public interest litigation and raise the research level. It points out feasible and systemic civil public interest litigation system to our country's current legislation and justice, which provides good suggestions to our country's future civil public interest litigation legislation whether from the aspect of material or from the path of consideration, by introducing foreign classic civil public interest litigation system and making comparative analysis among them.
Keywords/Search Tags:Public Interest, Civil Public Interest, Research of Comparative Law, System Construction
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