A Research On Civil Public Prosecution For Public Good Bring By Procuratorial Organs

The litigation for public good usually refers to that any individual or organization have the right to bring legal proceedings in the courts against actions of disobeying law and impairing the interests of the state, the public interests based on legal authority and these violators should be investigated by law enforcement. The procuratorial organs brings a civil lawsuit as representative of interests of the state, the public interests when public good are damaged seriously without definite and concrete regulation, which results in that there is no suitable subject of litigation or valid judicial intervene and protection since the subject can't proceed against, namely, public prosecution for public good. In china, whether procuratorial organs can bring civil public prosecution for public good or not is still in dispute since there is no regulation of legislation.The first part this dissertation is about the summarization of the civil litigation for public good; the writer discusses benefit and public good firstly, and then discussed the origin and development of civil litigation for public good, which originates from Roman. However, its development is closely and inseparably related to the origin and development of procuratorial organs, which is considered as the representative of public interests of the state for protecting the interests of the state and society.In the second part, the writer compares the system of litigation for public good of France and Germany, the representative of continental law system, Britain and America the representative of Anglo-American law system and former Soviet, the representative of socialist countries. Although each country has its own characteristic about litigation for public good, all procuratorial organs bring litigation for public good for protecting the interests of the state, the public interests, which shows that all countries in the world agree that procuratorial organs bring litigation for public good in terms of legislation.In the third part, the writer discusses the practice and development of procuratorial organs bringing litigation for public good. Firstly, the writer reviews the Chinese system procuratorial organs bring litigation for public good before liberation; Chinese accept that procuratorial organs institutes legal proceedings in the courts for public good from beginning of introduction during political reformin in the later Qing dynasty of China to the period of National Government or in Liberated areas leading by Chinese Communist. Secondly, the writer reviews the development of the system of procuratorial organs bring litigation for public good after the founding of New China; during this period, legislation had changed from admitting that procuratorial organs bring public prosecution for public good during the early years of the People's Republic, to canceling it after reestablish procuratorial organs, which reflects the dispute over this system between Chinese theorists and people supporting practice. Finally the writer reviews this system in Taiwan Region of china.In the fourth part, the writer discusses the base of procuratorial organs bringing civil public prosecution for public good. From the point of view of theory base, the first is theory of state interference, which solves the reason why procuratorial organs can bring civil public prosecution for public good. However, theory of state interference in western capitalist countries came into being for solving series of social problems during the development process from laissez-faire capitalism to monopolistic capitalism. However, theory of state interference in the former Soviet Union came into being basing on protecting the socialist public ownership. These two theories of state interference are significant in the process of developing socialist market economy to our country although they have different condition. The second is procedure party theory, which solves whether procuratorial organs become party in the civil public prosecution for public good. According to the theory of legal litigation trust in procedure party theory, procuratorial organs can be authorized in legislation to obtain the power of bringing civil public prosecution for public good. The third one is the theory of appropriate party, which admits that relieving the behavior of impairing the interests of the state, the public interests by virtue of civil judicial approach means that the real right of accepters of the interests of the state, the public interests is damaged; therefore, the benefit of litigation exists. Procuratorial organs are the best representative for the interests of the state, the public interests, who accords with the demand of the benefit of litigation and can be appropriate party. From the perspective of legal backing, the constitution and organization law of people's procuratorate prescribe the status of legal supervision of procuratorial organs, therefore, procuratorial organs can supervise all legal departement including constitution. From the perspective of procedural law, three main procedural laws of criminal, civil and administration separately prescribe that procuratorial organs supervises the constitution in the manner of basic principle, which is carried through in the whole course of litigation. It is necessary to expand rights of procuratorial organs in public prosecution for public good and endow with authority of public prosecution for good or assign this authority into the constitution of right to supervise.The fifth part is about the assumption of establishing the system of civil public prosecution for public good in china. Firstly, the basic principle of procuratorial organs bringing civil public prosecution for public good should include the principle of public good, the principle of limited the principle of relief and the principle of forbidding abusing their authority.The writer also discusses the scope of procuratorial organs bringing civil public prosecution for public good in china in this part, and concludes that Chinese procuratorial organs can bring civil public prosecution for public good against seven cases including loss of state assets, public nuisance, collaborating by using some means including contact, impairing the interests of the state, the public interests by legal form as a cover of illegal purpose, damaging public interests by right of monopoly position, impairing the rights of consumer because of the problem of quality, anti-dumping and other cases of impairing the interests of the state, the public interests without proper party. The third one is about the legal status of procuratorial organs when they bring civil public prosecution for public good.After analyzing five current major theories, the writer puts forwards that their legal status should be absorbing party of the theory of civil public prosecutor basing on the theory of party, which reflects in three aspects: firstly, procuratorial organs investigate according to their authority during the process of investigation and collection of evidence with a little obligatory, which absorbs the point of view of theory of civil public prosecutor; secondly, at the suing and adjudication stages, the theory of party is absorbed in the central segment of litigation, namely, both party are equal in the court. Thirdly, the relief for the situation that a party refuses to accept the judgment of the first trial should be distinguished as entity and procedure; procuratorial organs only have the authority of supervising irregularity of procedure, but have no authority of protesting court decisions, which absorbing the theory of civil public prosecutor basing on the theory of party and try to maintain procuratorial organs'function of supervision basing on ensuring the equal status in litigation. Fourthly, the writer puts forwards his own opinions about some special problems when procuratorial organs bringing civil public prosecution for public good; as for jurisdiction, the writer believes that prefecture-level procuratorial organs is the lowest one can institute; joint judicial organs is proper; the cost of litigation should be paid by state; procuratorial organs can't compromise with defendant; procuratorial organs can't drop the lowsuit; however, they can apply for droping a lowsuit with the permission from the court when litigation has become unnecessary; the longest time for litigation is applied in aspect of the prescription for instituting legal proceedings.