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The Prosecution Filed Public Interest Litigation System Research

Posted on:2012-01-18Degree:MasterType:Thesis
Country:ChinaCandidate:X LiFull Text:PDF
GTID:2216330368494983Subject:Law
Abstract/Summary:PDF Full Text Request
In recent years, public interest litigation is emerging as China's new social phenomenon and legal phenomenon, especially that proposed by the prosecution filed, which initiates the hot discussion and attention among the theoretical circles. This paper, based on the public interest litigation practice of the procuratorial organs, with a purpose to build China's procuratorial system of public interest litigation, intends to make a systematical analysis of public interest litigation proposed by the prosecution filed.This paper mainly touches upon the following three aspects. First, an overview of public interest litigation. Public interest litigation originates from the Rome law, but the modern sense of the public interest litigation began from the transition period from liberal capitalism to monopoly capitalism in the twentieth Century. During this period, emerged a large number of new disputes relating to public interest, which the traditional litigation model cannot deal with. Therefore, the modern public interest litigation came into existence. Most countries in the world have established a public interest litigation mechanism, however, China's public welfare protection in the legislation is still blank, which is one of the major drawbacks of the litigation system. Although there is no explicit legal provision, public interest litigation cases have occasionally occurred, under the existing framework of legal system, particularly those proposed by the procuratorial organs are most striking. Second, a detailed analysis of public interest litigation proposed by the procuratorial organs. Early after the founding of the country, the procuratorial organns began to participate actively in the civil litigation, and later with some special reasons, the procuratorial organs stop the civil litigation. In 1997, Henan province handles the first public interest litigation case in China. Since then, the public interest litigation has made great progress in practice, but there is still considerable controversy over whether the procuratorial organs can propose public interest litigation? The "negativism" and "positivism" views appear. In this paper, the author, by retorting the negativism view, proposed a "public interest view" and "general supervision power", as a combination of the public interest litigation theory. Third, some tentative suggestions of the construction of the public interest litigation system. Since public interest litigation procedures involve many complicated problems, the author probes into the public interest litigation, litigation model, program design, system of evidence, as the breakthrough point to the present research. In addition, to prevent the partial expansion of the public litigious rights of the procuratorial organs, the exercise of the rights deserves certain restrictions.Public interest litigation is still in the process of growing, and our country's procuratorial public interest litigation has just started, and its development also takes time to prove and requires the further development of the legislative reform. We should treat the public interest litigation rationally, believing that no matter how many difficulties along the way, it is certain to be a success.
Keywords/Search Tags:prosecution, public interest litigation, system
PDF Full Text Request
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