On The Prosecution Filed A Public Interest Litigation

Vesting procuratorial organ with power in taking civil lawsuit is an important item of the procuratorial system reform in our country. But the current "Code of Civil Lawsuit " doesn't stipulate the power of civil lawsuit taken by procuratorial organ, so it seriously restricts procuratorial organ to playing the necessary role in protecting the state interests, social and public interests. With the social development in our country, especially the development of process of legal system state, the civil public lawsuit system taken by procuratorial organ should be chosen and established.The first part in this article generalizes the concept, characteristics and value of the civil public lawsuit taken by procuratorial organ. Looking far into the civil public lawsuit of the main legal system states, the civil public lawsuit taken by procuratorial organ is a form in common use. Procuratorial organ has the right to supervise and intervene judicial activities, whose key intervention is to protect the state interests and social commonweal. The main forms of supervising and intervening judicial activities by procuratorial organ is taking legal proceeding and participating in legal proceeding with a rather widespread right and duty. At present, it hasn't any legislation for procuratorial organ of our country to take the civil public lawsuit.The second part of the article defines theoretical basis and practical reason of the civil public lawsuit taken by procuratorial organ. Establishment and development of any system must have its former theoretical basis as its support. Blazing new trails is the basis of legal principle for procuratorial organ to take the civil public lawsuit, i.e. 1.Civil lawsuit right of procuratorial organ. 2. State intervention 3.Action prosecution for infringing state interests or social public interests.The third part of the article deigns law system and specific procedure for solving the problem of civil public lawsuit taken by procuratorial organ combining the practice of law culture background of our country. The system construction includes: 1.Identity and law status of procuratorial organ to take the civil public lawsuit. There are state ombudsman statement, state law superintendent statement, commonweal representative statement, civil public prosecutor (organ) statement and plaintiff (party) statement. The author is for civilpublic prosecutor statement. 2.The case range of procuratorial organ to take the civil public lawsuit, includes: loss case of national asset, nuisance case, damage case of mass consumers caused by the poor product quality, antidumping case, monopoly case and other case of doing harm to state interests and social public interests by using the contracts. 3.Form of procuratorial organ to take the civil public lawsuit. The author thinks that in all theory it is more precise to adopt mono-lawsuit start mode for procuratorial organ to take the civil public lawsuit. About procedure construction includes: Procedure before lawsuit. According to division and administrative priority principle of administrative right and procuratorial right determines specific content of procedure before lawsuit. 2.Preparatory procedure before judge. According to investigation for preparatory procedure abroad, the author thinks the content of showing evident should be increased; mediate procedure and judge procedure should be separate. Prosecuted case that shouldn't be turned over to justice should be resolved before going to court. 3.Prove duty. The author thinks procuratorial organ should take responsibility for giving evidence. For one reason, procuratorial organ occupies a dominant position in ability of giving evidence. For another, it may prevent procuratorial organ from abusing the right of civil public prosecution. In the meanwhile, "clear fact and full proven evidence" should be stipulated as evidence standard. 4.Balance between defense and lawsuit It is inevitable to impact on civil basic right for procuratorial organ to take the civil public lawsuit. The author thinks that the right of civil public prosecution should be suitably restricted, meanwhile proceeding right of civil public prosecution defendant should be expanded to determine balance between defense and lawsuit. Restricting power of procuratorial organ embodies two aspects: one is that exercising authority will be examined by judicial organs; the other is compulsory measures should be taken. Expansion of the proceeding right of defendant embodies three aspects: one is right of getting informed, the other is right of required elucidation; the third is right of appeal.