The Legislation Research Of Civil Prosecution

In modern society, with the relationship between people getting closer and closer,there not only exists competition and confrontation, but also cooperation and win-win.While seeking self-interest maximization, people pay more and more attention to theprotection of public interest. The attention and protection towards public interest reflectthe level of national legal modernization and democratization. The Civil Procedure Lawin our country has been modified recently and includes the public interest litigationsystem for the first time, which fully shows the great attention and determination of thepublic interest legislative protection. However, the law doesn’t clarify one key issue: bywhom and in which way to realize the judicial remedy for public interest. Theprocuratorial organ, as the legal supervision authority and representative of publicinterest, shall develop the deeper exploration and attempt, which include the way toinitiate proceedings to seek judicial relief. While if the procuratorial organ is required toundertake the role, then what is the planned way and what is the theoretical basis,specifically how to operate? With awareness to the above questions, this paper startswith the exploration of connotations and the analysis of functions of civil publicprosecution, then sorts out the developments of the relating foreign and domesticlegislations, thirdly clarifies the practice and existing problems of civil publicprosecution under the Chinese context, fourthly analyses the necessity and feasibility oflegislation of civil public prosecution, and finally proposes the legislative constructionand procedure design based on the researches.Apart from the Introduction and the Conclusion, this paper includes six chapters,which can be summarized into four parts.The Introduction analyzes the background of this study through the examination ofunilateral situation of procuratorial supervision and the deficiency of public protection,highlighting the significance of this study through both theory and practices. Theresearch ideas and methodologies are also clarified in the Introduction with theillustration of the possible innovations and the shortcomings therefrom.The first part is the Chapter2of this dissertation, which emphatically discusses theconnotations and characteristics of civil public prosecution. The first part alsointroduces the relationship between the function of civil public prosecution and relatedregulations. In most situations,"public prosecution" is widely used in the area of criminal action. However, if we study the history and nature of public prosecution, wecan find that civil public prosecution is a part of the concept of public prosecution.Based on above premise, Section I of this Chapter clears the definition of civil publicprosecution, analyses the special meaning of "public", and emphasizes the appraisal ofdual-characteristics of civil public prosecution. Section II examines the specificcharacteristics of civil public prosecution from the specificity of the subject and theparticularity of the objective in order to summarize the dual nature of system, and thenextends to the limitation of operational range in the practices and the expansion ofresjudicata. Section III analyzes the pursued functions of civil public prosecution. Thislitigation system, undertaking a lot of features, is helpful to perfect the civil litigationsystem in the legislative level; and is helpful to optimize the prosecutorial powerconfiguration in the level of judicial practice; also in the social management level, it ishelpful to resolve social conflicts, and to achieve social justice. Section IV has thecomparative analysis between the civil public prosecution and the relating litigationsystems, specifying the relationships of traditional civil litigation and civil publicinterest litigation, administrative prosecution and the intersections among the systems tospecify the clear boundaries and characteristics of civil public prosecution.The second Part is about the foreign and domestic legislation and practice, whichare the Chapter3and Chapter4. Based on the comparative review of foreign civilpublic prosecution legislation, this Part reviews the related Chinese legislative historyand then introduces and evaluates China’s practice situation.Chapter3is the comparative review on the civil public prosecution among thecountries. The chapter selects several representative nations from the civil law andcommon law system as well as a comparative study of Russian civil public prosecutionsystem, which has the far-reaching implications to Chinese legislation, analyzing thecommon and individual characteristics and the development trends. Although France,Germany, the United States, Russia and other countries have different political system,and legal culture, the procuratorial organs’ nature and functions also differ, all of theabove countries agree that the procuratorial organs can be used as a representative of thepublic interest to use the civil public prosecution as the method to uphold and safeguardthe public interests. Copying the foreign mode is not desirable, but that does not meanthis comparison study is superfluous. On the contrary, this comparison and analysis canprovide useful inspiration, as a reference to the similar reform in Chinese legal system.Chapter4is the examination of Chinese civil public prosecution relating to the legislation and practices. This chapter comments on the legislative procedure and legalpractices. Civil public prosecution in China has not been properly recognized by law,but that does not mean this system can not be traced in the history. Reviewing Chineselegislative history, since the Qing dynasty to the early days, we can see the developmentpath of the civil public prosecution legislation. In nowadays, the system of civil publicprosecution has received the unprecedented attentions and concerns from the legislativecommunity and practitioners with their great efforts and promotions. These explorationsrecords make great contributions, and also there is a need to improve it with furtherefforts in the future legislation and practice.The third Part proves the necessity and feasibility of legislation to establish civilpublic prosecution, which is the Chapter5. It is necessary to analyze the necessity andfeasibility in order to pass the legislation of establishment a new legal system. Theanalysis of the necessity is to provide the necessary conditions; the feasibility analysis isto provide the sufficient conditions as well. For the two combined conditions are alsorequired in the legislation of civil public prosecution. From the necessary condition tocivil public prosecution, civil public prosecution conforms to the development trend ofmodern civil law, and also improves the legal system of the rule of law, which demandsthe public welfare protection. From the perspective of feasibility, the expansion of thecivil litigation rights provides a theoretical supports to the civil public prosecution. Itssupervision functions guarantees the judicial exploration to obtain the good results in itsaccumulation of practical experience. Based on the reasoning, it is concluded that theprocuratorial organs can take the responsibility for civil public prosecution.Based on the previous text, the fourth Part focuses on the construction of the basicframework of the legislation of the civil public prosecution and detailed procedures inthe Chapter6and Chapter7.The general theory on the legislation of Chinese civil public prosecution in Chapter6, mainly introduces the value orientation, the basic principles and the selected modes,which builds up a general framework with the idea for the legislation of civil publicprosecution. Apart from justice and efficiency, the value orientation of civil publicprosecution also specifically emphasizes the "public interest". Although from the strictsense, the public interest is different from fairness, justice, efficiency in the legalcontext to have the universal cognitive values. The value of the law is unique, whiledifferent emphasis and focus should vary in different legal systems. Safeguard publicinterest is the most fundamental and most direct value target of civil public prosecution. Because of such an important social role, the civil public prosecution destines to catchsocial attentions. Although public welfare and justice have some certain integratedvalues, this paper claims to single out the public welfare to better reflect the connotationof civil public prosecution. The second section demonstrates the basic principles of thelegislation of civil public prosecution. From the mandatory constraints and privaterights of autonomy, to the combination of legal supervision and public service, also tothe balance between further initiative intervene and limited relief, it all reflects that thecivil public prosecution is seeking the mutual balance among the value conflicts andcoordination of different interests and eventually to safeguard the public interest, and toachieve the ultimate goal of social justice. Section III illustrates the selected mode andstyle of legislation of civil public prosecution with its general framework. It analyzesdifferent modes of foreign legislation and style and differing views from the academiaon the basis of combining China’s political system, legal system and practice needs,further proposes the idea of our model and style.Referring to the procedural design of civil public prosecution, under the premise toestablish the overall pattern, Chapter7provides more detailed basis and reference forthe system to operate. Civil public prosecution belongs to one of civil litigation, but isdifferent from the general civil litigation as well, which its subject of litigation, thescope of the case reflect its own characteristics. Although the applicable procedure hasthe universality, it has its own unique characteristic, while the provisions of the specialprocedures shall be supplemented besides the ordinary civil procedure. In accordancewith the order of procedural stages, this Chapter divides the specific procedures into sixstages, which are prosecution, accepting, hearing, conclusion, execution and supervision,as much as possible to analyze and reason the different special procedures needed atvarious stages. It is expected to provide some reference and helps for the specificlegislation and operation of civil public prosecution.In the Conclusion, which based on the legislative necessity and feasibility of civilpublic prosecution, this dissertation proposes the prospects of civil public prosecutionsupervision, believing that the civil public prosecution will eventually become abrand-new area and the mainstream direction of functional supervision of Chinese civilpublic prosecution.