The Prosecution Filed A Public Interest Litigation Research

In the past few years, with the erosion of state assets and increase of environmental pollution which occurred frequently and seriously jeopardized the state and the public interest, the protection of public interest has drawn the public attention,moreover; the public interest litigation has become a focus in jurisprudence. Meanwhile, whether the procuratorial department is eligible bring the public interest litigation or not has also become a controversial topic in the legal theory field.Through the practice of public interest litigation, foreign legislation and judicial practice, the subject who files the public interest litigation is diverse. Different countries have different requirements on the subject of the public interest litigation, however, no matter in either common law or civil law system, either the capitalism system and the socialism system, despite of the similarities and differences among the judicial systems, they have the same rule allowing the procuraotial department the right to bring the public interest litigation. In the areas of civil litigation and administrative proceedings, the procuratorial department is an important party. Bringing litigation by prosecution on the basis of public interest is a common practice in foreign countries.At present, the public interest litigation channel has not been established in our country, and current legislation has no enacted any related regulations. To establish the public interest litigation channel, we have to figure out who is the qualified subject to file the suit. Based on the relevant foreign legislative and judicial practice, and combining with China's unique circumstances, I am of the opinion that the procuratorial department, the individual citizens and social groups can file the public interest litigation, of which the procuratorial department is more appropriate than the others. In this paper, I did some explorations on how the procuratorial department is qualified to be subject to sue.In our country, the prosecution, being the legal supervision branch, its fundamental duty is to safeguard state and social public interests. The procuratorial department, being the public interest litigation subject, is in accordance with the international legislative trends, and has unparalleled superiority than other subjects. On behalf of the state and public interest, the procuratorial department's function and nature determine that it is the subject of public interest litigation. It becomes urgent to give the prosecution the right to initiate public interest litigation, to allow the prosecution filing public interest litigation and to protect the state and public interest through the proceedings.To strengthen the research on the public interest, litigation brought by the procuratorial department has a positive role in improving the litigation functions, developing our civil and administrative proceeding system and protecting the public interest. Through the research on relevant legislation of the foreign states, analyzing the nature and function of the prosecution, and combining with the difficulties in the public interest litigation, the author presents the opinion that it is essential and feasible to give the suing right to the public prosecution.Based on this opinion, the author brings forward the preliminary concept of the prosecution filing public interest litigation: the loss of state assets cases, the economic cases that seriously influence the economic order of market competition, public nuisance cases, illegal land development cases, as well as other indefinite subject cases involving the state and public interest should be the major cases filed by the prosecution. The legal status of prosecutors should be defined as the civil and administrative, at the same time, as the legal supervisor. The characteristics of public interest litigation determine that it is a different system from other proceedings, such as the proceeding notification system, the punitive damages system, special prescription of action system and so on. In order to prevent the abuse of public prosecutors, it is also necessary to establish a limitation system. To optimize the public interest litigation system, to restrict the acts of the prosecution and to prevent the procuratorial department from abusing its right, which may infringe other subjects'legitimate rights, the author insists that State Compensation Law should be amended promptly, and in the justice compensation chapter, the definition that the prosecution is a compensate obligation subject should be made clear.