Research On The Perfection Of Procuratorial Civil Public Interest Litigation System In China

Public interest litigation is an ancient and young litigation system.Bcause as early as ancient Rome,public interest litigation appeared.Public interest litigation system in our country has been in a state of absence,until the 2012 Civil Procedure Law was revised to include it,but only the framework of the principles.The civil public interest litigation system did not play proper role after entering the law in 2012,the vulnerable national interests and the social public interests are still not effectively protected.Therefore,facing the reality of inadequate public interest protection.the Fourth Plenary Session of the 18 th CPC Central Committee proposed to explore the establishment of procuratorial organs to bring public interest litigation system.The procuratorial civil public interest litigation has become an important way to integrate the state and social forces to safeguard the social public interest,which is of great significance to promote the national governance.The establishment of the procuratorial civil public interest litigation system is an important achievement of the reform of the judicial system.Although the protection of the social public interest has found the best system mode through the procuratorial civil public interest litigation,the perfection of the system needs further study.Based on the above purpose,this paper summarizes and demonstrates the basic problem,reform background,theoretical basis and practical effect of the procuratorial civil public interest litigation,and finally puts forward some suggestions for the improvement of the system.In addition to the introduction and conclusion,the thesis is divided into four parts,from the basic category of the procuratorial civil public interest litigation system,the background of the reform and the theoretical basis,the observation of practice to the perfection of the system.The main contents of each part are summarized as follows:The first part focuses on the basic concepts of the procuratorial civil public interest litigation system.The thesis tries to discriminate the related concepts.The public interest,as a principled concept in politics,economics and law,has been fully discussed and considered.But it is not possible to legislate a precise definition of the public interest so far because of broadness,uncertainty and abstractness of the public interest,and the public interest is a similar general concept as fairness and justice,good faith.The public interest is real.We can better understand its connotation and extension through the uncertainty of public interest,the basic attributes of public interest,integrity and procedure,and the boundary division with private interest and national interest.The established standard of the public interest is mainly public welfare and social identity,which reflects some of the most basic value orientation and identity of human society.when the public interest is legalized,it will become one of the legal benefits of judicial protection.Several provisions in the civil litigation code the content of public interest,especially the civil public interest litigation is the most obvious.The public interest under the background of civil public interest litigation is mainly limited to the typical pure public interest,which is the interests of no specific majority,reflecting the strong public and indivisibility.Through comparative investigation,the paper concludes that the connotation of public interest litigation refers to the specific subject under the premise of the authorization of law brought the lawsuit to the people's court against actions which violate the national and the public interest.The characteristics of the public interest litigation are mainly reflected in the differences of litigation function,plaintiff's qualification,right relief and adjudication effect from the private interest litigation.In the mode of the public interest litigation,civil public interest litigation is an important part.As the representative of the public interest,the procuratorial organ has the responsibility ofsafeguarding the national interest and the social public interest.For the cases involving the national interest and the social public interest,the procuratorial organ has the right to file a lawsuit.The procuratorial civil public interest Litigation has also been formally established in the civil procedure Law of our country in 2017,and became an important way to protect the public interest.The second part takes the reform background and the theory basis as the argumentation direction.The thesis holds that the reform background of the procuratorial civil public interest litigation system comes from the four aspects-this round of judicial reform,the reform of the state supervision system,the traditional civil public interest litigation and the practical needs of the state governance.Through the comparative analysis,it is concluded that the political basis of the public interest litigation system lies in political participation.The individual and social organizations can participate in politics to achieve a certain political purpose through the public interest litigation.In our country,the procuratorial civil public interest litigation is still a political act in essence which is an alternative supplement to the low enthusiasm of the public interest litigation from social organizations and other organs.The civil public interest litigation by procuratorial organs is conducive to safeguarding social fairness and justice,making up for the shortcomings of administrative law enforcement,promoting administration according to law,and realizing the rule of law in the governance system and governance capacity of the state.The procuratorial civil public interest litigation embodies the demand of the people-centered thought in the new era which is the philosophical basis of the procuratorial civil public interest litigation.About the litigation law of the procuratorial civil public interest litigation,the thesis holds that under the background of welfare state,the social "legalization" cannot meet the needs of resolving modern disputes which has brought a breakthrough in the theory of civil litigation,such as the theory of party eligibility.Fundamentally speaking,beause of the judicialization of social governance,the procuratorial civil public interest litigation is the judicial way to alleviate the public interest disputes in the case of the breakthrough of litigation theory.The procuratorial organs carry out the function of legal supervision by bringing the civil public interestlitigation,which embodies the constitutional orientation.The procuratorial organs use the track of litigation to safeguard the social public interest,safeguard the authority and dignity of civil law,and ensure the unified and correct implementation of the law,which embodies the basic function and value of legal supervision.The third part focusing on the practice of the procuratorial civil public interest litigation,the thesis tries to make a reasonable evaluation on the effect of procuratorial civil public interest litigation system.By analyzing the normative features and the complete case data in2016-2018 of the procuratorial civil public interest litigation system,it is concluded that the function of the procuratorial civil public interest litigation system is gradually embodied,which is embodied in the core function of protecting public interest,enforcing the law,forming public policy,the marginal function of promoting social governance and the reference function for other similar reforms.In the practice of the system,it has formed the concept of restorative justice,the concept of "ensuring the unified and correct implementation of the law ",the concept of fairness and efficiency,the concept of all-win,the concept of supplementary justice,and so on.By observing the practice of procuratorial civil public interest litigation system,the thesis has put forward a series of difficulties existed in the system to provide reference for shaping and perfecting the system.The fourth part focuses on the improvement of the procuratorial civil public interest litigation system.Starting from the particularity of the system,the thesis holds that there are differences with civil litigation in the subject,the basis of litigation,procedure,rights and obligations,which is the logical starting point for constructing the procuratorial civil public interest litigation procedure.By analyzing the internal logic of the procuratorial civil public interest litigation,the thesis holds that the fundamental purpose of the procuratorial civil public interest litigation is to protect the social public interest,and the traditional civil litigation procedure cannot meet the needs of the procuratorial civil public interest litigation to resolve the disputes about social public interest.Starting from constructing the procedure system of civil litigation,different types of social disputes require setting different procedure rules,it is obviously more appropriate to position the procuratorial civil public interestlitigation as a relatively independent special procedure.The construction of procedure should adhere to the basic principles of maximizing public interest,paying attention to efficiency,procedural justice,procuratorial restraint,the thesis put forward the theoretical reflection and construction on the perfection of procedure from the right of action,subject matter of action,attacking and defending methods and judgment.The legislative supply can be carried out in three steps: formulating procedural rules,promulgating judicial interpretations,and formulating a separate law of public interest litigation.In the future planning and development,the thesis puts forward preliminary thinking about the principle and path of expanding the scope of the procuratorial civil public interest litigation cases,the promotion of the enthusiasm of social organization litigation and the empowerment of individual litigation in the construction of social public interest protection system.