The Status Of Prosecution In The Civil Public Interest Litigation

There are so many disputation issued by theory and practice such as the status of judicialstatus of plaintiffs in civil public interest litigation, the status of prosecutors in such litigation,and also not cleared the relationship between the kinds of plaintiff etc. This dissertation isbased on the latest version of the "Civil Law" Article No.55, try to research the status of theprosecution in public interest litigation under background of the status of plaintiffs need to bedetermined in such litigation. Meanwhile, this dissertation is also focused on the plaintiffstatus of prosecutors in the civil public interest litigation, combining of the theory andpractice disputation to make a further controversial research for the relationship ofprosecutors with other plaintiffs in such litigation, hope to establish the sue model based onthe plaintiff core status of prosecution prosecution and make the better guide on judicialpractice.This dissertation constructed by three part: introduction, main body and conclusion. Themain body is constructed by four aspects.The first aspect is mainly analyzes the plaintiff and status of civil public interestlitigation. This section briefly describes the general theoretical issues, then analyzes thecurrent situation of the plaintiff and the particularity of the public interest litigation plaintiff.The latter is the focus of this section: First, to analyze the particularity of the public interestlitigation plaintiff. Such plaintiff theory is to break the limitations of the private interestprotection and the drawback of focused on entity, according to this, the author making thefour particularity conclusion of such litigation plaintiff. Second, the analysis of the status ofcivil public interest litigation plaintiff. The main analysis of drawback of public interestlitigation plaintiff caused by not clear of its status and the regulation for the plaintiffs in publicinterest litigation is still narrow. The status of civil public interest litigation plaintiffs is notclear for a long-term and impacted for deeply disturbing, even if the exists of Civil ProcedureLaw article55, such special litigation plaintiff status is still difficult to be determined,Therefore it is an top urgent to repair and improve these defects.The second aspect is to research the law status of prosecution on abroad. This subject isconstructed by two parts: first part is the commons of how to define the legal status of theprosecutors under the legislation and practice in several typical representative countries. Thesecond part is the conclusion based on the first part, namely the world is comprehensive accepted that making the prosecutors enjoy the civil public interest litigation, so theplaintiff legal status of prosecutors in our country should also be given.The third aspect is the scheme for the plaintiff status of the prosecutors in the civil publicinterest litigation, which is the most important place of this dissertation, also divided by threeparts: the first part describes the different domestic argument about the legal status of theprosecution, through the analysis, the author think that the "litigant" theory is more reasonableas it is more in line with the jurisprudence of the Civil Procedure Law. The second part issummarized and drawed based on the legislation of other countries to make a more specificidea about the plaintiff status of prosecutors under different situations: when the prosecutorsinvolved in the public interest litigation should be in co-plaintiff legal status; but when theprosecutors filed a civil public interest litigation directly should be in the status of plaintiff.The third part analyzes the necessary for the prosecutors as a plaintiff in the public interestlitigation, the author discussed such necessary from three points, namely the demands ofsafeguard public interests, the demands to expand the rights and functions, to balanced bothrelationship of sue and supervision.The fourth aspect is the analyze of the relationship between the prosecutors with otherpublic interest litigation unit as for plaintiff. the conclusion is that the prosecution should be atthe core status, because of through a series of argument, the prosecution is the optimalplaintiff in civil public interest litigation, which should be at dominant position during thelitigation process. Meanwhile, the author further claimed that premised on the core status ofplaintiff and based on Article55, cooperated administrative departments&socialorganizations to participate together in order to effectively protecting the public interestaccording to establish a restrictive ternary structure buttressed modes.