Decision of the CPC Central Committee on major issue pertaining to comprehensively promoting the Rule of Law adopted by the fourth session of the 18 th Communist Party of China central committee indicted definitely that we should explore erecting system of procuratorate taking civil public interest litigation.The similar description was seen in the work report of the Supreme People’s Procuratorate at the Third Session of the twelfth National People’s Congress on March,2015 that with the approval from the law, we should exploring erecting system of procuratorate taking civil public interest litigation starting with ecological environment. In my view, erecting system of procuratorate taking civil public interest litigation at the legal level satisfies the need of protection of public interests in judicial practice and is also an essential part of improving the legal system of civil public interest system.The thesis consists of four parts.The first chapter is the summary of civil public interest litigation. It mainly introduces the conception and characteristics of civil public litigation. Meanwhile,gives brief summary of the procuratorate taking civil public interest litigation at this stage. Civil public interest litigation is a kind of litigation action. The authority organization as prescribed by law files a lawsuit against any conduct that damages the public interest to request the defendant to assume the civil liabilities. The civil public interest litigation has its own characteristics about proceeding purpose, litigation subject and damage consequence compared to private interest litigation. In addition,civil public interest litigation helps to form good social conduct. The procuratorate taking civil public litigation is no definite legal basis at present, but it has obtained good social and legal effect. The procuratorate filing a lawsuit is better for protecting pulic interest, and it is also a necessary complement to the procuratorate supporting for filing litigation. Further more, The procuratorate taking civil public litigation is better for improving the legal system of civil public interestsystem.The second chapter is to prove the legitimacy of the procuratorate taking civilpublic interest litigation. Firstly, the theory of “civil public prosecution” provides the theoretic foundation and it is more convincing and reasonable compared to the theory of “public interest” and the theory of “the right of legal supervision”. Secondly, the procuratorate taking civil public interest litigation has its own advantages in filing public interest lawsuit. The procuratorate has rich lawsuit experience and professional elites. In addition, it also takes the lawsuit according to the law strictly which helps to reduce lawsuit spread unchecked. Thirdly, the procuratorate is independent compared to the administrative department. It is not handicapped by local government. The procuratorate filing the public interest lawsuit can remedy the deficiency of the social organization taking the lawsuit. It is also a necessary complement to the procuratorate supporting for filing litigation. The individual is not suitable to be the plaintiff because of the insufficient in resources and abilities. At last, the paper makes fully demonstration by refuting the opposite viewpoint. In my opinion, if we make reasonable system designs, the procuratorate filing the public interest lawsuit will not violate the basic principle that the two parties have equal status in the civil procedure.And it also will not clash with the role of “legal supervisor”.The third chapter analyses the practicality of the procuratorate taking civil public interest litigation. The procuratorate filing the public interest lawsuit conforms to the spirits of the national policy, but also consists with the current law. Advanced legal systems abroad offer references for the improvement of the procuratorate taking civil public interest litigation in China. Meanwhile, the justice practices of the people’s procuratorate filing the public interest lawsuit in recent years provide precious practical materials.The last chapter proposes the concrete system designs to guarantee that the system is practical. The scope of the case should be legally defined. In my opinion, it should be confined in four kinds of cases: the environmental civil public interest litigation,the case of infringements upon the legitimate rights and interests of many consumers,the case of anti-monopoly, the case of the disappearing of the state property. The civil public interest litigation shall generally be under the jurisdiction of the intermediate people’s court, so the lawsuit should be brought by the municipal procuratorateaccordingly. The procuratorate finds the materials of the case and then examines it to decide whether to file the public interest lawsuit. In the civil proceedings, the procuratorate as the plaintiff should have the equal litigation rights and duties with the other party. In allocating burdens of proof, the procuratorate should only assume the burden to prove the conduct harmful to the public interest and the harmful consequences, while the defendant should bear the burden to prove that there was no causation between his activity and the harm in order to enhance the initiative of the procuratorate filing the public interest lawsuit. |