A Research On Civil Commonweal Lawsuit Proposed By Procuratorial Organ

Commonweal lawsuit refers to the system, in which, a certain organization or person proposes lawsuit to the court about the acts that violate law, infringing the interests of the country as well as the public interests of the society and the lawsuit is examined by the court and the court penalizes the responsibility of the violator. In current judicial pract6ice, commonweal lawsuit is a topic with lots of arguments. However, since there is no legislation on commonweal lawsuit, the system that procuratorial organ proposes the civil commonweal lawsuit on behalf of the country is essential under the situation that progress of our country ruled by law is rapid. This thesis states the definition, arguments, reference of setting up this system as well as the concrete conception. This thesis is divided into three parts.Part one Definition, arguments and development of civil commonweal lawsuit proposed by procuratorial organThis part begins with the definition of civil commonweal lawsuit proposed by procuratorial organ, while the author reaches definition the of commonweal lawsuit proposed by procuratorial organ upon analyzed on the definition of commonweal lawsuit and connotation of public interest. Then this thesis illustrates the arguments existing in the current theoretical and practical circles that whether procuratorial organ has the right to propose civil commonweal lawsuit. People with negative opinion think that civil lawsuit is the argument on civil interest between equal subjects. It is unsuitable interference to litigant punishment right for procuratorial organ to propose civil commonweal lawsuit. They also state that they do not conform to the character of civil commonweal lawsuit and this will bring certain strike. In addition, procuratorial organ can not implement the supervision function if it proposes civil commonweal lawsuit and this is not good for its development. The scholars holding positive opinion think that most countries all over the world stipulate that it is procuratorial organ that proposes the civil commonweal lawsuit and lawsuit right is a very important part of legal supervision of procuratorial organ. Some scholars think that it is a kind of restriction to litigant to abuse the rights for procuratorial organ to propose the civil commonweal lawsuit. The author takes the view that procuratorial organ should be endowed with the lawsuit right from reality since the current state of the country has such need. In addition, since the theory of lawsuit right, litigant and punishment is changing all the time, we can ratify and amend our theory from practice. Finally, this part states that civil commonweal lawsuit experiences a zigzag development process. It is not a repeat for our country to discuss civil commonweal lawsuit proposed by procuratorial organ but the demand of the state of our country and the essential trend of the development of civil lawsuit in China.Part two: Reference for civil commonweal lawsuit proposed by procuratorial organPart two mainly discusses the reference of civil commonweal lawsuit proposed by procuratorial organ from three aspects:It begins with the theoretical reference, including civil lawsuit theory, procuratorial theory and national interference theory. Civil lawsuit theory covers lawsuit right theory and punishment right theory, which change the traditional saying of interest related persons and expand the scale of litigant, emphasizing the restriction to right abuse for litigant from the country. Procuratorial theory illustrates from the character and function that civil lawsuit right is part of legal supervision right of procuratorial organ which is decided by its special character and status. National interference theory emphasizes that Private Law interfered by our country is different from the complete interference of the Soviet Union, but the limited restriction. Meanwhile, this kind of interference is not created only by our country. There is procuratorial organ in Great Britain, America, Japan and German to represent the country to interfere the stipulation of Private Law.The following is the practical reference. It is the need of real state of our country for procuratorial organ to propose civil commonweal lawsuit, mainly including the following three aspects: first, there are many facts that national and social interests are infringed; second, commonweal lawsuit is not satisfied in recent years; third, we have made profitable exploration in practice.Finally, this part states the legal reference. Though there is no definite stipulation in Civil Procedure Law that procuratorial organ has the right to propose the civil commonweal lawsuit, we can still find the reference for our procuratorial organ to propose the civil commonweal lawsuit in Charter, Civil Procedure Law, Criminal Procedure Law, and General Rule of the Civil Law, etc.Part-3: The Conception on the civil commonweal lawsuit proposed by procuratorial organThis part illustrates how to construct the system of civil commonweal lawsuit proposed by procuratorial organ. The author first covers the principle and scale of civil commonweal lawsuit proposed by procuratorial organ, taking the view that the scale should be narrow, not broad. Thus the procuratorial organ can not only perform its responsibility, but also maintain ruling the mind by the citizens themselves. Therefore, the scale should be within infringing the national asset, referring significant interest of the citizens and doing harm to the public order and good custom. Second, the status of procuratorial organ in civil commonweal lawsuit includes the following five sayings: national monitor of lawsuit, national prosecution, prosecutor, etc. The author thinks that Prosecutor Theory conforms to the status and character of procuratorial organ in civil commonweal lawsuit and embodies that procuratorial organ is different from ordinary civil litigant. The following of this part states the rights of procetorial organ in civil commonweal lawsuit. The author considers that due to the special lawsuit purpose of the procuratorial organ, besides the lawsuit right of ordinary litigant, procuratorial organ should be endowed with investigation right, counter-appealing right and hearing priority right. This is for ensuring the better realization of lawsuit and maintenance of commonweal. Fourth, due to the particularity of commonweal lawsuit, the procedure should be different from ordinary civil procedure. The difference lies in the supervision and urging procedure before the lawsuit and examination of the verdict after lawsuit. In addition, the author gives the negative response to the problems that whether litigant can counter-charge, whether procuratorial organ collects the lawsuit fee as well as whether procuratorial organ has the right to mediate.