Study On The Issue Of Prosecutorial Department To File Civil Public Action

With the development of China's socialist market-oriented economy, people are now more and more aware of the right of their own, meanwhile, the importance of protecting the rights and interests of the country and public has also been gradually recognized and accepted, which should be attributed to the idea that there will exist no personal interests if public interest and public order could not well protected and maintained. Because of the influence of the highly planned economy system, China has been accustomed to administrative and even criminal method while ignoring civil procedure in protecting the rights and interests of the country and public. However, with the establishment of market-oriented economy, we are now marching toward the country of ruling of law, which calls on the establishment of the principle of "jurisdiction resolves all disputes ".So, it is of great importance to settle legal responsibility through open, fair, democratic legal procedure. In China, prosecutorial department supervises the execution of laws and rules, and files suits against illegal actions. At present, many scholars hold that prosecutorial department has the right to file civil action in order to protect the rights and interests of the country and public. In my opinion, necessity is only one factor, but it is not enough. Legal system should also fit in with current situation, legal theory. This article consists of six parts as follows: part 1: Current situation in China. China now is building market-oriented economy system, with the deepening of china's reform and opening to the outside world, states assets are faced with misapporation seriously, states interests and public interests are infringed upon now and then; meanwhile, modern enterprises and organizations are getting stronger and stronger, it is difficult for the victim alone to file suits against them, let alone get paid. Traditional civil procedure can not well cover his losses. At the same time, China has been accustomed to administrative and even criminal method in protecting the rights and interests of the country and public,which is not in line with the global trend. So, it is of utmost importance for the prosecutorial department to file civil suits to protect the above mentioned interests. Part 2: Theory background. With the development of the theory of freedom of contract, the theory of contesting party, the limit of jus dispodendi, the dilation of the yoke of judgment, the prosecutorial department to file civil suits has got its theory backbone. Part 3: legal background. Besides the prosecutorial department's constitutional status as legal supervision department, general principles of civil law, the principle of supporting prosecution, the institution of civil suit collateral to criminal proceedings, the institution of representative action also offer legal background to prosecutorial department to file civil suits. Part 4: The system of the prosecutorial department to file civil suits home and aboard. In fact, not only in Soviet Union, but also in United Kingdom, United States of America, France, Japan, it is their common choice for the prosecutorial department to file civil suits. What's more, in ancient China and after the PRC was founded, prosecutorial department also has the duty to file civil suits. So, it is benficial to have a deep sight into those systems to make a proper choice. Part 5: Some scholars hold that, in western countries, prosecutorial department is administrative organ but not legal supervision department, so, we should amend Constitution to set prosecutorial department as administrative organ. However, such method and its conclusion are both worth reconsidering, because the theory of separation of power is not absolutely the case, what's more, China has it's peculiar situation of his own. Part 6, the author made a series of detailed suggestions governing the issue of prosecutorial department to file civil suits. On the whole, this article carried comprehensive research about prosecutorial department to file civ...