On The Reasonable Orientation For The System Of Civil Procuratorial

At present, China is in the economic and social transition period, has become a member of WTO, and inclines towards internalization. Within this situation, the contradictions among the people have gradually become obvious, the coordination of interests, guarantee of rights and harmonization of contradictions involved in numerous social contradictions and issues almost enter the judicial field by the means of appeal representation, and thus justice and judgment have already become a major channel and manner of coordinating social contradictions. How the procuratorial organs, serving as legal supervisory organs in China, fulfill their relevant functions and roles is a vital topic facing the present judicial reform. During the judicial reform, the legal supervisory functions of the procuratorial organs should be further improved and implemented, based on the overall situation and practical requirement of the state legal establishment. Hence, we should focus on the expansion and contraction of the civil procuratorial right, and scientific and reasonably allocate the civil procuratorial right.The Chinese civil procuratorial system includes the system of civil prosecutorial protest and the system of civil public prosecution. This thesis tries to illustrate the reasonable orientation of the civil procuratorial system from the following three chapters.The first chapter comparatively examines the civil procuratorial system in China and other countries.The western procuratorial system, according to the principle of separation of three powers, is justifiably and theoretically based on the separation of powers and equilibrium theory. It reveals the functions of procuratorial right upon administrative right and trial right from such two perspectives of constitutional government and litigation. The procuratorial organs strictly conform to such principles as the autonomy of private rights and contract freedom in the completely personal field, do not interfere in the courts'civil trial, and respect the courts'independent trial, will autonomy of the party involved and valid judgment, and the res judicata of verdict. However, when the abuse of private rights infringes upon the public interests of the society, the procuratorial organs proceed on behalf of the state, restrict rights by other rights, and prevent the undue abuse of private rights.The Soviet Union, according to Lenin's civil procuratorial theory, objects to the division of public law and private law, observes the concept of nationalism, employs the supervisory right as masterstroke, and implements omni-directional supervision in the field of civil litigation. Actually, it is the improper expansion of the state's right to interfere in the private law relations that leads to the independent position of the subjects of the civil law, and the loss of dignity and autonomy awareness.The Chinese procuratorial system is a vital system installation that completely differs from the requirement for implementing power equilibrium in the western political structure of separation of three powers, and instead, it is a particular option for the system of National People's Congress. The Chinese civil procuratorial system, through supervising the activity of civil litigation, effectively maintains the unification of legal system, and safeguards the legal execution of the state powers.From the perspective of the development and evolution of the civil procuratorial system in western capitalist countries, the Soviet Union, and China, the Chinese procuratorial organs neither owns the common function of civil litigation as the western procuratorial organs, nor the overall supervisory function of civil litigation as the procuratorial organs in the Soviet Union, and instead, it only owns the function of civil prosecutorial protest. This is because the reasons for the difference between the civil procuratorial system in China and that in other countries do not only lie in different system constructions, but also in different legal conceptions. We should reasonably orientate the Chinese civil procuratorial system by combining the advanced judicial conceptions within the frame of constitutional government.The second chapter concerns the contraction of the right of civil prosecutorial protest.The present legal regulations upon the specific rights and obligations of the procuratorial organs during civil litigation are too abstract in principle, the narrow supervisory content and single means lead to the disagreement between the procuratorial organs and courts, and hence it is difficult to operate in practice.The over one decade's supervisory effect of the civil prosecution and supervision of the procuratorial organs proves that the systematic supervision upon the judicial corruption and unfair judgment in courts, strongly maintain judicial justice, and judicial authority.The legal circle's queries about right of civil prosecutorial protest, is mainly represented by the interference of prosecutorial protest in the independent trial of courts, the shake to the res judicata of judgment, the violation of the principle of will autonomy of the party involved, etc. If the trial right is not subject to any limitations, autocracy and abuse will inevitably emerge. Thus supervision cannot be excluded by excuse of independent trial. The legal particularity of the right of civil prosecutorial protest determines that the procuratorial organs'supervision upon courts is limited, procedural, and after-event supervision only causes the occurrence of the retrial procedures, but neither affects the courts'independent trial of retrial procedures, nor owns the binding effect of the entity judgment of the courts'retrial.The value function of the res judicata must obey the aim of judicial justice. We should not incorrect the errors with the excuse of maintaining the res judicata of judgment. The purpose of setting the system of civil prosecutorial protest is that the party involved can appeal to the procuratorial organs, and cause the retrial procedures through prosecutorial protest in order to ensure the future final judgment owns legitimacy.The original purpose of the legislation on the system of civil prosecutorial protest is to restrict the trial right, definitely instead of interfering in the behavior of the autonomy of the party involved. The system of civil prosecutorial protest will not destroy the litigation balance between the courts and the parties involved, and it can start the retrial procedures in order to provide the procedural remedy for the interests of private rights of the party involved that is impaired by the unjustified final judgment.The present prevalent views of canceling or limiting the system of civil prosecutorial protest equal the ideal results with the process of the system evolution, obliterate and cover the real environment and conditions by the supposed premises, and thus the conclusion is certainly bona fide but unpractical, and is greatly harmful to practice. The existence of the system of civil prosecutorial protest owns practical reasonability, and legal and theoretical basis. We cannot arbitrarily make interpretations and expand the execution of the right of prosecutorial protest. Instead, we should, according to the national situation in China, and based on the present situation of legal governance and advanced judicial concepts, contract the system of prosecutorial protest from such aspects as trial conditions, the principle of examine, the trial level of prosecutorial protest, the reasons for prosecutorial protest, and the liability of the presence in court.The third chapter involves the proper expansion of the right of public prosecution.It has already become an uncontroversial fact in western capitalist countries that the procuratorial organs propose public prosecution on behalf of the state, which provides the experience for designing the Chinese system of civil public prosecution.At present, the Chinese public interests have been seriously impaired, and there are some deficiencies in the present system of managing and protecting the public interests, which is not helpful for the rapid and healthy development of the socialist market economy. The system of civil public prosecution has still not been established, which is not applicable to the present national situations in China. Legislative organs should improve the legislation on the system of civil public prosecution in the aspects of procedures and entity as soon as possible, and hence solve this issue.The state-centric concept provides thought source and justified basis for the active and overall interference of the state powers in the field of private laws. The procuratorial organs can propose civil public prosecution by executing the right of litigation, beyond the bound of disposal right executed by the parties involved, but the scope of executing the right of litigation is only confined to the purpose of public interests, and shall not involve in the field of private rights.The scope of the procuratorial organs'proposal for civil public prosecution is dependent on the actual situation of the Chinese economic development, and is confined to the category of public interests, mainly including: the case of public impairment, the case of the loss of state-owned assets, the economic case of seriously affecting market competitive order, and other cases of impairing the social public interests.