Civil Suit System Construction

In judicial practice of civil litigation, while protection of right and procedure guarantee of civil subject individuation and unification of legal and social effect are concerned about and paid attention to more and more, protection of civil infringed public interest which has character of diffusion, uncertainty and potential is neglected. And investigation and exploration from the point of view of litigation system are also neglected. Practice of civil public interest litigation has been noticed by media in recent years and has also become a focus problem to be noticed gradually by academic circles. Under limitation of law structure nowadays in China, there is still serious collision between civil public interest litigation and traditional civil litigation. In order to prevent some civil law-breakers from loafing within grey zone of law with hope of luck or chance, this essay attempts raising questions through two typical cases as an introduction and revealing embarrasing situation of public interest protection in traditional civil litigation mode, thus initiates consideration that it is necessary to construct protection system with character of pluralistic and combined type and make channel of civil litigation to protect public interest unimpeded, thus construct civil public interest litigation system.In this paper, five chapters are included. In chapter one (Introduction of field of vision of civil public interest litigation), tracing back to source study and different opinions about suitability of judicial procedure in public interest litigation are explored. The author suggests constructing dual public interest litigation framework, that is, constructing "dual channel of law" of public interest relief through civil public interest litigation and administrative public interest litigation. On foundation of demarcation of difference and connection between the two litigations, through objective attitude and rational point of view, civil public interest litigation is located rationally in public interest litigation, and that civil public interest litigation is an inseparable composite force of public interest safeguard is put forward. Furthermore, from the point of view of law relation analysis and contrast between civil public interest litigation and traditional civil litigation, its characterization is differentiated, its concept is delimited and its sole character of justice, tolerance and high efficiency are elucidated. Finally, legislation and practice of civil public interest litigation system in some representative nations within two systems of law are enumerated, so that pulsation of civil public interest litigation system can be handled better. Thus, beneficial experiences to construct civil public interest litigation system in our nation in preliminary stage are supplied.In chapter two (System shortage and bottleneck breakthrough of civil public interest litigation in China nowadays), due to the present situation of frequent discovery of national assets diminution, trade monopolization act, breakthrough of bottom lines of commercial goodwill of enterprises and refusing to correct environment contamination and resource damage, it is important and urgent to construct civil public interest litigation system. The author puts forward that civil public interest litigation is the necessary system guarantee to realize socialism idea of rule of law, since the construction of this system can build up a real and convenient way for managing national affairs by people and it can supply interest of injured party of small sum of money with integrative protection. It can realize function of prevention before the event and action guidance. Furthermore, existing theoretical bottleneck and trouble of judicial practice in its development are investigated. To counter resistance in realization, the author elucidates that construction of civil public interest litigation system is the necessary demand of judicial body to protect civil right and its existence has appropriate foundation of procedure justice. It is also the necessary arrangement to protect litigious right of civil plaintiff and its existence has reasonable reality of litigious right safeguard. After answering the question about whether the court has adjudicative justification or not and analyzing that the interest of litigation has been expanded in scope and deepness and that the concept of proper client is guided under the idea of procedural client, the author attempts to find out the aiming expansion and path of solution for civil public interest litigation.In chapter three (Correspondence between expansion of plaintiff qualification and matching litigation system in China), plaintiff subject type in civil public litigation is expanded to three. They are procuratorial organization, social organization and citizen. Their corresponding litigation systems are set up. First, in the field of civil public prosecution posed by procuratorial organizations, giving civil prosecution right to them is direct and effective way to safeguard national and social public interest and they should play the role of plaintiff only. Second, in the field of litigation posed by social organizations, it explains that this civil public interest litigation has the superiority of reducing litigation cost and saving judicial resources. Furthermore, it emphasizes that limited condition of prosecution qualification of social organizations should be set up and types of litigation should be limited to actions of affirming and changing legal relations. Expanded boundaries of retrospective force of adjudication and judgment in organization litigation are delimited in two steps, that is, the retrospective force should be limited within the social organization members and based on the principle of gaining a lawsuit only. Third, in the field of public interest litigation posed by citizens, the author suggests that it is necessary to introduce citizen litigation system in order to compensate inadequate force of government management demand from the point of view of differentiating pure civil public interest litigation and mixed public and private interest litigation. Since there is a greater possibility to cause class actions by mixed public and private interest litigations, Chinese representative action system is considered. It is suggested that model cases should be introduced in order to substitute for the function of solving the problems caused by class action, the point of view of law and legal norm to solve disputation are cleared. Thus, the parties of disputation can find out the path to solve the problem and people's action can be guided.In chapter four (Choice of case types and construction of system in civil public interest litigation in China), cases of civil public interest litigation are at present limited to environment and nature protection, national assets protection, client right protection, anti-monopolization, dishonest trade over securities and other rights of citizen litigation. Furthermore, a series of legislative advices are put forth. First, ascertain grade jurisdiction. Due to the fact that civil public interest litigations are related to non-specific people interest and its effect may be great, civil public interest action of first instance should be administered by Intermediate People's Courts or higher levels. Second, judicial remedy system is introduced, it is suggested that civil public interest litigations posed by citizens or social organizations should be included in objects of judicial remedy. As to litigation fee, it should be paid at last. Third, burden of adducing evidence is distributed reasonably. Due to the special position of procuratorial organization, they have the right using mandatory measures to search for and preserve evidences when they raise a civil public interest litigation. In the courses of civil public interest litigation posed by citizens or social organizations, due to the difficulty of giving evidences or far away from them, the defendant should bear the burden of adducing evidences. Fourth, by developing superiority of trade experts' jury trial, knowledge structure is more completed, case fact is better ascertained and people psychology is well understood. Fifth, taking advantage of examples of cases, it is suggested that by using example cases in the bulletin of Supreme People's Court as guidance, application of law is unified.In chapter five (Prevention of abuse of civil public interest litigation right and its handling), by analyzing extent of injury from abuse of civil public interest litigious right, from the point of view of combination of prevention before the event and punishment after the event, it is suggested that while the criterion of proper qualification of litigant to sue is developed, measures to prevent abuse of civil public interest litigation should be set up. In the field of prevention before the event, examination of public interest over placing cases on files and combination of pre-examination and direct prosecution of public interest litigation posed by citizens are set up. In the field of punishment after the event, definition of infringement of abuse of civil public interest litigious right and its corresponding civil liability are put forth.Through the five chapters mentioned above, the author desires that the situation of system shortage of protection of public interest in civil litigation field nowadays will be changed. Thus, a conforming system can be set up to achieve judicial function of harmonious society.