| With the continuous development of diversified modern society,people not only pursue the maximization of personal interests,but also pay more and more attention to the protection of social public interests.At the same time,attaching importance to and protecting social public interests is also a symbol of the modernization and democratization of a country's law.Through the amendment to the Civil procedure Law of the people's Republic of China in 2012,China formally incorporated the public interest litigation system into the civil litigation system,and then after several years of judicial practice and the trial period from 2015 to 2017,the right of action of civil public interest litigation was formally granted to the procuratorial organs in the revised Civil procedure Law in 2017.It is necessary for the procuratorial organs,which have the responsibility of legal supervision and represent the social public interests,to make a more in-depth exploration and attempt to protect the social public interests.What's more,the procuratorial civil public interest litigation system should also become the last line of defense to protect social and public interests in our country.However,the definition of public interest and the identity orientation of procuratorial organs are lack of specific provisions in the relevant laws at present.At the same time,there are also defects in the system rules before the lawsuit,in the lawsuit and in the follow-up procedure.Therefore,when the procuratorial organ undertakes the function of protecting social and public interests through civil public interest litigation,what is its theoretical basis? what is the current situation of the system? what are the specific problems? What are the ways to solve the problems? With these questions,this paper starts with the connotation of civil public interest litigation,discusses the theory involved and the significance of the system,and sorts out the present situation of legislation and practice of the system as well as the existing problems.At the same time,it introduces the relevant foreign systems and summarizes the useful experience,and finally puts forward solutions to the problems existing in the civil public interest litigation system initiated by the procuratorial organs of our country,in order to further promoting the development and improvement of the system in our country.This paper is based on the above ideas,in addition to the introduction,conclusion,is divided into five chapters.The introduction of this paper is mainly an introduction to the issues related to the topic selection.In addition to the introduction,there are five chapters.The first chapter is "the basis of argument: the basic theory of civil public interest litigation brought by procuratorial organs".This part is based on the determination of the development and connotation of civil public interest litigation.It further introduces and analyzes the procuratorial civil public interest litigation system and the procuratorial power allocation theory,the litigation trust theory and the new party theory as well as the procuratorial administrative public interest litigation system.And through the analysis of the role of the system in safeguarding social public interests,performing the legal supervision functions of procuratorial organs,restricting public power and making up for the lack of administrative supervision,this paper expounds the significance and value of the system of civil public interest litigation brought by procuratorial organs.The second chapter is "interpretation of the status quo: the legislation and practice of the system of civil public interest litigation brought by procuratorial organs".First of all,according to the chronological order,this part introduces the relevant legislative development process of the civil public interest litigation system initiated by the procuratorial organs in the Civil procedure Law of China,and lists the relevant judicial interpretations separately and in detail.and specifically analyzes the relevant legislation of criminal incidental civil public interest litigation brought by procuratorial organs.Then it mainly introduces and analyzes the current situation of judicial practice of the litigation system in our country since 2015.On this basis,this part presents some research and analysis of the specific status of the system through the research and analysis of the practice of filing procedures,pre-litigation procedures and prosecution procedures,as well as criminal incidental civil public interest litigation related content.The third chapter is "introspection: the institutional dilemma of civil public interest litigation brought by procuratorial organs".Based on the empirical study of legislation and practice in the second chapter,this chapter summarizes the problems in the system of civil public interest litigation brought by procuratorial organs in our country.According to the thinking from macro system to micro procedure,this chapter first discusses the basic issues in the system of civil public interest litigation brought by procuratorial organs,such as the definition of public interest and the defects in the identity orientation of procuratorial organs.Then it makes a systematic analysis of the defects and deficiencies in the pre-litigation procedure,the litigation procedure and the follow-up procedure system according to the order of the litigation procedure process,and probes into the deep-seated reasons behind these problems.The fourth chapter is "learning its skills: the extraterritorial experience and enlightenment of the public interest litigation system".According to the distinction of the public interest litigation system model,this chapter studies the legislative status of several representative countries,such as the United States,Japan,Germany,Britain,Brazil,France and so on,analyzes their legislative model and summarizes the legislative experience.The political systems differ between foreign countries and between countries and China,and such differences also include legal culture and the nature and functions of procuratorial organs.From the perspective of the dominant way,there are also differences in civil public interest litigation among different countries.In spite of these differences,these countries have given procuratorial organs the right of action in civil public interest litigation.And most of the subjects of civil public interest litigation have diversified characteristics.This will help to enlighten and improve the procuratorial civil public interest litigation system and build a diversified civil public interest litigation system in our country.The fifth chapter is "Innovation and improvement: the path to improve the system of civil public interest litigation brought by procuratorial organs".Based on the previous text,this chapter puts forward some suggestions to improve the problems existing in the procuratorial civil public interest litigation system discussed in the third chapter.In view of the basic problems in this system,the view of this paper is that the criteria of public interest should be clearly defined,and the right of public interest litigation should be effectively integrated with the right of private interest litigation;as for the identity orientation of procuratorial organs,it should be positioned according to its specific way of participation and different stages of litigation.In view of the problems existing in its procedure,this paper thinks that in the pre-litigation procedure,we should first expand the scope of cases.Secondly,because of the particularity of the civil public interest litigation,we should clarify the investigation and verification power of the procuratorial organs and improve the provisions on the power of investigation and verification.At the same time,it also gives more detailed suggestions for improving the pre-litigation procedure.In terms of the procedure in litigation,with regard to the rules of proof,this paper believes that it should be clear that the principle of inversion of the burden of proof should not be applied in this system;at the same time,this paper asserts that the procuratorial organs should be limited to the right of litigation disposition.In terms of the follow-up system of litigation,this paper puts forward some suggestions on how to improve the mechanism of second instance and retrial as well as the supervision mechanism of enforcement and enforcement.The conclusion part summarizes the full text,and looks forward to the future research trend and approach of the civil public interest litigation system initiated by the procuratorial organs.Generally speaking,this paper has some innovation in three aspects.First of all,in the analysis of the interest basis of civil public interest litigation,through the method of interest analysis,this paper studies the social public interest from the perspective of civil and social sciences.The author thinks that the civil public interest litigation brought by the procuratorial organ must be based on the dualism of prevention and relief.Secondly,based on practices,the papers discusses some theories and reconstructed some specific rules of this system to a certain extent.Some ideas are put forward,for example,the principle of inversion of burden of proof can not be applied in the system of civil public interest litigation filed by procuratorial organs,or the corresponding identity should be defined according to the different stages and different ways of participation of the procuratorial organs in the litigation system.Finally,in the design of the relevant legislation,it is suggested that the scope of cases should be expanded to a certain extent,to increase the coverage of public interests that can be protected from the system,and to refine and improve the problems existing in the pre-litigation,litigation and follow-up procedures in terms of specific procedures.However,as the author's ability in theoretical research and control of literature is really limited,there might be some loopholes in the article,mainly as follows: firstly,the research on the theory of civil right of action is not thorough enough and it fails to achieve a more in-depth analysis of the basis of the right of action to solve the civil public interest litigation system of procuratorial organs;Secondly,the research on the legislative process and related practice of the extraterritorial civil public interest litigation system is relatively superficial,and the literature is not detailed enough,so it is difficult to provide enough comprehensive reference for the development and improvement of the system in China.Finally,it is necessary to improve the overall vision of scientific research in academic research,and the research level need to be improved.There might be a lack of more in-depth discussion on the specific procedural system design related to the development and improvement of the system and the supporting convergence of its legislative ideas. |
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