The Prosecution Filed Public Interest Litigation

For the sake of the solution of current embarrassed circumstances to protect the public benefits urgently concerning with lagging laws of our public litigation, we should set up our public litigation system, according to the characteristics of public litigation, and draw lessons from which abroad, and bring public litigation, at politics, economy and law, well into play.The public litigation derives from Rome. The ancient jurist of Rome was divided into the public laws to the method with the private method, the litigation was also divided into two kinds: "public litigation" and "private litigation. ". With the purpose of protecting the private rights, called private litigation; while with the purpose of protecting public welfare for purpose, is called public litigation. The public litigation, compares with the private litigation, has the following characteristics: Firstly, the purpose of it benefits social public; Secondly, The corpus who brings up the public litigant are in wide ranging; Thirdly, the unbalanced of the both sides in public litigation; Fourthly, the indeterminate claiming of the public litigation; Fifthly, the expansion of the effect in public litigation sentences. Therefore, from the both sides in the public litigant, we can see, it refers to the behavior that infringes upon the social public benefits, it may be a national organization, or a social group, or just an individual, it is the litigation activity handles by law. Recently, public litigation turns to be fairly popular discussed by judicial power and scholars. The system makes up the loophole the national administration management, so as to let the law put into practic. But, in the our country there is not a law concerning public litigant today. Now, the litigations put forward by procurator ate are mainly those such as: civil litigation, administration litigation, supporting the civil litigation, or those method of non-litigations as to make the use of proposes or accommodates made by procurator ate to conduct the law. But it is a problem for disputing. The law supervisor says that, in the organization of procurator ate who raises civil- administration litigation, regardless the participation of procurator ate adopts to the litigation, the position of whom be a law inspector. This kind of standpoint contains two thoughts of core: First, the reason that the organization of procurator ate initiates public prosecution, is a civil litigation which bases on the law given to administrate procurator ate 's direct power. The second, as the organization of procurator ate initiates just public prosecution as a kind of means of its law direct, as a result in civil-administration litigation, the procurator ate organization is procedure the meaning person, whoshouldn't undertake the risk in lawsuit; Dual position as saying, to procurator ate though placed in plaintiff, according to our national law, three comes to a decision that it is the different from general plaintiff. Here, to the organization of procurator ate, he is a plaintiff, however is also a law inspector again. That is he should possess the litigation right of the plaintiff and posses the right of civil- administration as well. Plaintiff says that procedure of public litigation, raised by organization of of procurator ate, as procurator ate represents the indictment behavior of the organization of procurator ate, may cause the litigant occurrence similar to the beginning of the litigation procedure, the procurator ate declares, after initiating public prosecution, the litigation requests, the organization of procurator ate with civil-administration plaintiff is the litigation person, he is also in the position of plaintiff. The core thought of this standpoint consists in: Agree on the public- litigant right given by the organization of procurator ate, but do not agree to the litigation right which gives to the general civil case in the organization of procurator ate administration litigation. Public prosecution thinks, in the course of organization of procurator ate, the procuratorate's law position is in public prosecution, there having been no substantially differences between the pertaining and crime litigation. In these two kinds of behaviors the procurator ate has no independent benefits in itself, therefore, both the person's law position should be in public prosecution. This kind of standpoint is substantially to make use of the public prosecution power of the procurator ate to civil-administration litigation, in order to realize formally the procurator ate unifies; The public representative says that in the public litigation raised by procurator ate, procurator ate is the representative of the public right, and stick up for social public benefits. The writer agrees to the standpoint of the public prosecution and thinks, there should set up the public prosecution system of the procurator ate afresh, and the public prosecution power of the procurator ate should include the pertaining to crime public prosecution power, administration public prosecution power, civil public prosecution power and the economic public prosecution power.