Research On The Plaintiff Qualification Of The Public Interest Litigation

Long established in highly democratic countries and regions with strong rule of law to better safeguard the interest of the state and the masses, public interest litigation as a new mode of legal action in China is yet to emerge in the three procedural laws. There are still no remedial procedures or legal systems for the protection of public interest. Establishing public interest litigation system contributes to public awareness of the right of action to protect the state and public interest as well as to necessitate improving democratic and legal systems. Currently with attention and research from academic world and the increasing occurrence of such cases in practice, public interest litigation has become a focus.However, as cases of public interest litigation enters into judicial proceedings, what poses as the chief obstacle is in what capacity the plaintiff files the suit. In legal practice in present-day China, most of the cases are just dismissed for not possessing qualifications as prosecutors. Therefore, for the setting-up of public interest litigation system and its effective enforcement in the judicial practice, removing such a bottleneck is a must. After all, a trend characteristic of contemporary legislative lawsuits is to relax litigation requirements to allow a wider range of plaintiffs. Furthermore, more and more countries gradually loosen their requirements for prosecutor qualifications for the sake of defending the interest of the state and the masses.Four chapters make up the main body.Chapter one provides a general analysis, covering concepts, features and the theoretical basis of plaintiff qualifications of public interest litigation. Public interest litigation as it is called, refers to the legal action initiated by certain government agencies, social groups and individual citizens in their own capacity for the protection of the state and the public interest. It has the following characteristics: First, public interest litigation aims at protecting the state and the public interest. Second, public interest litigation can root out unlawful acts or their damages before they take effect, so it is of preventative nature. Third, public interest litigation allows wider range of subjects of procedure, involving certain government agencies, social groups and individual citizens. Fourth, public interest litigation takes place either in the event that unlawful acts have resulted damage to public interest or there is only such a possibility. Fifth, public interest litigation is highly state-intervening. The basic theory of the plaintiff qualifications of public interest litigation includes the theory of"litigation rights"and the theory of"qualified litigants". The development of the theory of"litigation rights"brings about the separation of litigation rights in concept and proceedings. Giving the third person, the non-entity controversial subject, the litigation right in proceedings to safeguard the entity controversial subject solves the theoretical problems of litigating for the interests of others and society. While the development of the theory of"qualified litigants"removes the restraint of"direct interest", which serves as the theoretical basis for the problem of prosecutor qualifications in public interest litigation.In chapter two the writer mainly introduces the present condition and the plight of plaintiff qualification in public interest litigation of our country, consisting of the plaintiff qualification in antitrust litigation, taxpayers litigation, environmental protection litigation, and state-owned assets protection litigation. The plight lies in the lack of legal basis for the plaintiff qualification.Chapter three presents the introduction of the modes of plaintiff qualification in public interest litigation in foreign countries like America, Britain, France, Germany and Japan. Through inspection and comparison, we find that, despite the different forms and names, the public interest litigation in different countries share many similarities, one of which is the diversification of channels of public interest litigation and the qualification of prosecuting subject, another is the expansion of the plaintiff's standing and the unchanged scope of the plaintiff, the third is the broadening range of the acceptable cases, the last is the increasing importance of the social welfare groups.In chapter four there is the discussion about establishing the system of the plaintiff qualification in public interest litigations in our country. As the "State Prosecutors" and specialized legal supervision organs, the procuratorial organs should possess the superior plaintiff qualification and is naturally able to take the proceedings on behalf of the state, which is the practical need of preventing the state assets from being drained and anti-trust. The functions of the procuratorial organs determine them the representatives of state and society, and make up the shortfalls of other litigation forces such as the professional bodies whose development is unsound, and individual citizens over which the procuratorial organs have incomparable advantages. In addition, the procuratorial organs starting the civil public interest litigation is the need of realizing the legal supervision. The procuratorial organs should also be subject to some necessary limits such as the scope of cases, prosecuting conditions and the right of free disposition in litigation. Apart from the procuratorial organs, due to their typical representativeness and the increasingly larger role in environmental and consumer protection, some social organizations should be entrusted the plaintiff qualifications of public interest litigation, so that they can more comprehensively and accurately reflect the voices of the people, better maintain the public interest and have a wider social effect. Besides, limitations should also be imposed on these social organizations that they have to be set up according to law in the public interest, organized perfectly with special funds for activities, and be professional and representative. Finally the individual citizens should also serve as the supplements to the plaintiffs of public interest litigation, which is citizens' need to realize personal rights, their obligation and responsibility as part of the whole society, as well as the need of legally ruling the country and developing the society harmoniously. However, on account of the inadequate strength of the ill-informed citizens, the bearing of litigation costs and the allocation of the burdens of proof ought to be considered as well to avoid abusing lawsuits.Through the analysis above, the writer view the theory of"direct interested persons"should be broken in order to broaden the range of plaintiff qualifications of public interest litigation, have more subjects involved in maintaining national interests and social public welfare and establish the ternary system of plaintiff qualification with procuratorial organs as its center and social organizations and individual citizens as its supplements.