The Complement Of The Counter-Charging Procurator

It depends on the system of public to build the system of civil and administrative procurator in our country, and it's also the result of the disposition of rights. From 1991 when all the procuratorates founds their system of civil and administrative procurator, we have made great progress; however, in pace with the development of the market economy, some contradiction and conflicts appear. Thus, the author tries to analyze this system thoroughly and point out several ideas and suggestions of his own. In the forward, the author introduces the legal source historical improvement, and the current situation of this system, then drawing a conclusion that it should be completed. In the first part, the author analyses the current legislation and shortcomings of this system. Firstly, the author introduces our current legislation of this system from the following three aspects: constitution, law of the civil litigation, and the super procurator's , ; secondly, the author evaluates today's system from litigation forms, litigation technique, litigation aim and litigation structure, pointing out that to the form of legislation, the stipulation about this system in principles is different from that in the details in law of civil litigation. During principles, the right of civil and administrative procurator is much better than that in the details, which influences the legal practice seriously, and to the legislation technique, how to perform the counter-charging right is so unclear that it is very difficult to be practiced. And to the structure of legislation, there is no regulation about the procurator's arousing litigation when involving country and society's benefit. In the second part, the author introduces the main ideas and disputes about this system, and then mainly evaluates the above ideas and disputes. The author thinks that in the current economic conditions and legal systems, it is rational and necessary to build the civil-administrative procurator. (1) There is its base of legal principles. (2) It is important way to protest judicial fair and authority to realize "manage state affairs by the law". (3) This system has been confirmed by all of the countries. About civil right of the counter-charging, firstly the author analyses the right's reasonability and necessity from the two aspects of legal value and practical operation, and draws a conclusion that civil right of the counter-charging is the result of the unperfected judicial systems and imperfect trial situation. The third part is about the complement of the counter-charging procurator. Firstly, we should deal with several connections: between supervising the civil lawsuit and protesting the ultimate judgment; between the countries's interfere and the party's dealing right. Secondly, he discusses the complement of the civil system of the counter-charging, pointing out that we should further make clear the range of the range of the counter-charging object, because the executive procedure is not the lawsuit procedure, which can not arouse the retrying procedure, and can not arouse the counter-charging; we should further make clear the examining standard of the counter-charging cases, thinking synthetically about all of the valuable theories in the system of counter-charging. At last, the author explores the new form of civil and administrative way. No.1 we should cautiously explore the system of prosecutor's supporting prosecution, and aphesis that only when the benefit of society isharmed and the plaintiff belongs to the small and weak, we can arouse the system. No.2 we should establish firmly the system of arousing civil lawsuit by procurator's, but limiting the case to protest country's or social benefit. In the concluding remarks, the author sums up the above text and declares his ideas about structure and complement of our civil and administrative procurator.