Analysis On Civil Public Good Lodged By Procuratorial Organs

The litigation for public good originates from Roman law by contrasts with the litigation for private benefit. During the period of Roman law, litigation can be divided into the litigation for public good and the litigation for private benefit; the latter is the litigation for protecting private proprietorship which can be instituted by particular person. In Theory of Roman law, Mr. Zhou Nan points out that the litigation for public good is the one for protecting social public interest, which can be instituted by any citizen accepts special regulation by law. The litigation for public good is also called litigation for fine, and in Istituzioni di Dritto Romano, Italian jurist, Pietro Bonfante points out that people call litigation for fine being set for protecting social public interest demos litigation since any citizen can institute. We consider litigation for public good as civil action that citizen, social organization, state special organ proceed against persons for disobeying civil and economic law, impairing the interests of the state, the public interests and disrupting social and economic order according to law and demand People's Court to maintain the interests of the state, the public interests by judgment. The litigation for public good includes narrow one and general one, the former one only includes civil and administrative ones but not criminal one. This dissertation discusses the civil litigation for public good brought by procuratorial organs.Countries with advanced legislation all possess the regulation about that procuratorial organs bring a civil lawsuit as representative of interests of the state, the public interests, and procuratorial organs instituting litigation for public good in name of state for maintaining the interests of the state, the public interests has become important context of the system of civil action; moreover, the related theory and system have become more and more perfect. In recent years, loss of state assets in china is shocking by the sight, environmental pollution can be found everywhere, unfair competition begins to appear, aggrieving vulnerable groups is very apparent; all these public nuisance events are short of effective relief and case seeking for law is few, which severely endanger the society and the public interest and affect means of litigation except state instituting, it is necessary for procuratorial organs to shoulder the duty of instituting civil litigation for public good for healthy development of national economy and maintaining good social economic order; however, china doesn't confirm the legislation of procuratorial organs instituting civil litigation for public good, which seriously limits the role of procuratorial organs in terms of protecting the interests of the state, the public interests. With the development of establishing the country under the rule of law, the system of procuratorial organs instituting litigation for public good should be chosen and established.The writer tries to use the manner of historical review for analyzing the theory and reality of the system of procuratorial organs instituting civil litigation for public good from the angle of perfecting procuratorial system based on judicial practice; furthermore, the writer believes that it is necessary and feasible for procuratorial organs to institute civil litigation for public good based on the deep review on the situation of china; finally, the writer assumes the procedure of establishing procuratorial organs instituting civil litigation for public good in china currently.This dissertation consists of three chapters besides introduction and conclusion.In chapter one, the writer summarizes civil litigation for public good, which belongs to litigation for public good. Litigation for public good is the one for protecting public interest, therefore, the writer summarizes the concept and characteristic of civil litigation for public good beginning with public interest, and the concept and characteristic of civil litigation for public good; moreover, the writer reviews the current situation of civil litigation for public good in United States, Britain, France, Germany and Japan and briefly discussed the its situation in china.The second chapter is about the generality of procuratorial organs instituting civil litigation for public good. Beginning with legal basis and reality of the system of procuratorial organs instituting civil litigation for public good, the writer limit the scope of civil litigation for public good as following: the case of loss of state assets, the case of environmental pollution, the case of monopolizing and limiting market competition, the case of aggrieving rights and interests of consumer and other case of aggrieving rights and against public interests and security,which makes procuratorial organs can shoulder the responsibility of maintaining public interests and without the bad influence on other duties because of heavy pressure. Based on judicial practice of each level in terms of procuratorial organs instituting civil litigation for public good, combining with concrete case, the writer analyzes the manner by which procuratorial organs participate in civil litigation for public good, such as supporting related organs with character as accuser and organs for legal supervision, supervising and urging with character as organs for legal supervision, instituting participate in civil litigation with character as second party or individual; furthermore, the writer believes that procuratorial organs institute as civil public prosecutor is the direction of legislation and practice of Chinese procuratorial organs.The third chapter is about establishing the process of procuratorial organs instituting litigation for public good and assuming establishment of the process in China currently. As a system litigation of litigation, the actual maneuverability of civil litigation for public good is very crucial; otherwise it can't play its role of protecting public interest. This dissertation discusses some special problems in terms of establishing the process as following. Firstly, the basic principle of procuratorial organs instituting civil litigation for public good should include general principle apply to civil action but not to mediation by court; extending the principle of faithfulness and honor from the domain of entity of law to the domain of procedure of law and ascertain it; limiting application of punishment principle; limiting application of authority of dropping the charges. Secondly, procuratorial organs have burden of proof when they institute civil litigation for public goodlitigation for public good. As for establishing burden of proof, the writer believes that we should consider technology, specialty of evidence, convenience of burden of proof the policy direction of protecting the right for confirming burden of proof; moreover, the writer believes that the burden of proof rests on procuratorial organs and ensure the standard of proof as fact is clear and proof is real and sufficient. The third one is about acceptance and prosecution of procuratorial organs instituting civil litigation for public good, that is, ensuring the origin of case, conditions and process of prosecution. The fourth one is about Prescription for instituting legal proceedings; the suggested Prescription is five years and it starts from the day accuser knows. The fifth one is about who should bear the cost. As for the cost, the writer believes that procuratorial organs shouldn't bear and the necessary cost after losing a lawsuit should paid by state expenditure or foundation for litigation for public good.