On Constructing The Public Interest Litigation Of China

In recent years, with the continuous development of the socialist market economy and more frequent economic exchanges, conflicts and contradictions in the social field have become increasingly intense, a number of infringements take on various features of harm spreading, wide-range victimization, longer-duration victimization and large number of victims, etc., particularly those various cases involving the protection of public interest are increasing day by day. However, due to lagging legislation and weak research on the theory of public interest litigation, the victims can not protect their legal rights and interests or public interests through litigation in practice, and some"Injustice defenders"often end with failure to fight for unspecified majority through litigation. Social public interests which are closely related to people's lives don't clearly have a stake in a specific person, it is for the protection of public interest. Whether the non-interested party can ask for protection through legal proceedings when the public interest suffers from illegal infringement cannot be satisfyingly resolved based on our current litigation system. It is extraordinarily difficult to seek for assistance from law, specifically expressed in the results of these cases that plaintiff ends with losing the lawsuit and which shall not be put on record by court. As a result, the plaintiff is confronted with an awkward situation in public interest litigation, which is a major defect of our litigation system. In order to better protect public interest from infringements and further complete the current litigation system, it is necessary for China to construct public interest litigation system. Public interest litigation is an important approach to protect the livelihood of the people and civil rights, a necessary requirement for reform of the judicial system, and a representation of acting on international standards as well as achieving legal integration.This article will discuss about constructing public interest litigation system specifically in four parts. First, introduce the production and development history of public interest litigation as well as its connotation features. Public interest litigation can be dated back to laws in Roman times at the earliest, the litigation to protect the social and public interests; public interest litigation is an activity to safeguard as well as realize social and public interests by means of legal mechanisms. Its subjects are extensive and it is preventable from harm to public interest and the result is radiative compared with a single form of litigation. Second, introduce the implementation patterns of public interest litigation in two major western legal systems. Public interest litigation in the United States is mainly showed in the"Private Attorney General"system; in Britain it is mainly instituted by procuratorial organs and public organizations; German has its public interest representatives specially set to attend the litigation; and in India it is mainly centered on the activities of the Court. The implementation patterns of public interest litigation in two major western legal systems have a lot in common. Third, introduce the current development situation of the public interest litigation of China. With the development of social economy, practices of public interest litigation are emerging constantly but lack of system. The causes in restricting its development mainly include restriction on theory of litigation right, restriction on theory of litigant qualification and litigation costs, etc.. Fourth, focus on analyzing the construction of public interest litigation of China. First of all, expand the scope of plaintiff in public interest litigation, listing procuratorial organs, public organizations, litigants representatives and individual citizens as the prosecution subjects; next, understand clearly scope of accepting cases in public interest litigation and define the scope of litigation through civil and administrative public interest litigations; then, divide rationally the burden of proof of public interest litigation and set it according to different prosecution subjects; in addition, reasonably share costs of public interest litigation and set a logical incentive mechanism.The thesis aims to put forward some helpful countermeasures and suggestions to construct legal system of public interest litigation with assumption generated from clarifying the connotation and studying current situation and potential questions of public interest litigation in our country, and using international advanced public interest litigation legislation as well as practical experience, so as to make up loopholes of legal system to a certain degree, complete litigation system, expand covering area of judicial remedy system and better maintain social order and public interests.