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Research On Civil Public Interest Litigation Of Consumption By Procuratorial Organ

Posted on:2020-09-21Degree:MasterType:Thesis
Country:ChinaCandidate:J H ChengFull Text:PDF
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In recent years,with the development of society,the public interest has been violated frequently,mainly involved in the field of environmental protection and the protection of consumer rights and interests.How to protect the public interests of societybetter,the legislature needs to make provisions in line with China's current conditions,choose the appropriate public interest litigation model suitable for our country.Compared with private interest litigation,the difference is that the interests involved are different,the private interest litigation is mainly to protect the private interests of the lawsuit,the benefit protected by public Interest litigation is the social public interest representing the interests of the non-specific majority.Now the rapid economic development,if only rely on private interest litigation,then the interests of group consumers will be abandoned,especially in the case of a large number of small consumers.Therefore,it is very important to choose the suitable consumption civil public interest litigation mode to safeguard the legitimate rights and interests of non-specific consumers.Choosing different modes of public interest litigation is also the choice of different subjects of public interest litigation.Compared with our country,the consumption civil public interest litigation in Western countries appears earlier and the system is more perfect.Therefore,it is very necessary to establish a model of consumer civil public interest litigation suitable for our country and absorb the successful experience of foreign countries.Therepresentative consumption civil public interest litigation in foreign countries includes the consumer group litigation mode led by the United States and the consumer group litigation mode led by Germany.Scholars have also made a positive exploration of these two models,although China has not chosen these two models,but the two systems still exist a certain reference significance.Most countries in the West have also set up a system for prosecutors to file consumer civil interest lawsuits,such as the UK's Crown prosecutor system,the US prosecutor filing lawsuits,and so on.Since the founding of the Public Prosecutor's office in New China,the procuratorate has appeared in legislation for the first time in 1949,after which the laws and regulations have also been perfected.But,with the advent of a special period,the system has also been abandoned.It was brought up again when the Civil Procedure Law was amended in 1982,the final Civil Procedure Law did not provide for such a system.The lack of legislation has not hindered the pace of practice,the first individual citizens since the founding of New China filed public interest litigation and public interest litigation filed by the Public Prosecutor's office all occurred during this period.It was not until the Civil Procedure Law in 2012 that the public Interest litigation system was re-entered into law,and the Consumer Rights Protection Act of 2013 gave consumer organizations the right to bring up consumer civil public interest litigation.However,the consumption of civil public interest litigation cases has not increased dramatically,mainly because of the limitations of consumer organizations themselves.In order to better protect the rights and interests of consumers,in 2015,the NPC Standing Council authorized the Supreme People's Procuratorate to carry out public interest litigation in 13 provinces and cities throughout the country.The pilot has made good progress and laid the groundwork for the formal legislation that followed.The 2017 revision of the Civil Procedure Law formally included the Public Prosecutor's Office in the category of civil public interest litigation.The introduction of the two high explanations in 2018 also made the system more perfect,so that the Public Prosecutor's Office filed a formal establishment of the consumer civil Public Interest litigation system,how to better improve the system is the next issue we want to explore.This paper is divided into three chapters in the structure,from the point of view of the problem,analysis of the problem,the solution of the problem of the procuratorial organs in the process of consumer civil public Interest litigation problems and the reasons for the emergence of the problem,and on this basis put forward the author's suggestions for perfecting this system.The first chapter of this paper starts with the case analysis and the present situation of legislation,and then puts forward the problems existing in the practice process and the current legislation of this system.Roughly including four aspects:first,the main qualification of procuratorial organs,that is,the procuratorial organs in the first instance and second instance,retrial procedures in the litigation status;second,the procuratorial organs in the civil public Interest litigation cases in the process of the source of the case clues and the scope of the case of deficiencies;The third is the procedural problems of the procuratorial organ in bringing the consumption civil public interest litigation,which can also be divided into the pre-litigation procedure and the two parts of the litigation process.The shortcomings in the course of litigation are mainly embodied in litigation jurisdiction and litigation mediation procedure.The four is about whether the procuratorial organ can put forward the claim for damages in the course of the lawsuit and how to define its standard.The second chapter makes an in-depth analysis of the problems raised in the first chapter,combined with the academic and theoretical circles ' views on the problems.First of all,there are some different views on the subject qualification of procuratorial organs in the first instance,such as the parties said,the public welfare representative said,the supervisor said,and so on,each point of view has a certain rationality.The pilot program and the two high interpretation define the status of procuratorial organs in civil public interest litigation as "public interest litigants" and "public Interest litigation prosecutors" respectively.Some scholars believe that such a term is only a procedural definition,rather than the title of the procedural law.With regard to the status of the procuratorial organ in the second instance,with the promulgation of the two high interpretation,the dust settled,that is,the procuratorial organ in the second instance in the status of the appellant.There is relatively little debate about the statusof procuratorial organs in the retrial,and the academic circles generally agree with the identity of the procuratorial organs in the process of retrial of legal supervisors.Secondly,the current legislation on the procuratorial organs to bring public interest litigation cases of the source of clues and the scope of the provisions of the case is relatively narrow,for this different scholars have different views.Many scholars argue that this content should be reasonably expanded,and some scholars think that the current provisions are reasonable and do not need to be extended.Thirdly,the legislation stipulates that the pre-litigation procedure is mainly aimed at further saving judicial resources and improving judicial efficiency.However,due to the lack of capacity of consumer associations and related institutions,the system does not play a very good role,so it needs to be further improved.With regard to the jurisdiction of procuratorial organs in public interest litigation,the two high interpretation removes the content of the special litigation jurisdiction of procuratorial organs in the "Pilot implementation measures",but in practice there is a need to violate the situation that the public interest litigation is brought by the municipal(sub-state)People's Procuratorate in principle.Therefore,it is very necessary for the legislation to make provision for this.The provisions on whether the procuratorial organs can agree to mediation and settlement in public interest litigation have also undergone a change from there to nothing.There are different views on this different scholars,and the scholars who disagree mainly start from the particularity of the procedure of reconciliation and mediation,and think that this is exclusive to the individual rights of consumers,and the procuratorial organs can not make disposal.There are also scholars who argue that since the procuratorial authorities do not have the right to file claims for damages,what is the significance of conciliation or mediation? Finally,since the legislation provides for the public interest litigation system,the question of whether the subject of public interest litigation can highlight the claim of damages is constantly debated.The pilot implementation measures give the procuratorial organs the right to file claims for damages in the course of litigation,and there are many typical cases of this type during the pilot period,but due to the lack of standards for litigation,the procuratorial organs often make 10 times times the claim of punitivedamages in accordance with the provisions of the Food Safety law,This makes the amount of compensation claims in some cases very large,making it difficult for offenders to bear,not conducive to economic development,which has become one of the reasons why many scholars oppose giving the procuratorial organs the claim for damages.Also for the above reasons,the two high interpretation does not specify the content of the claim for damages.In the third chapter,the author puts forward his own opinions and concrete improvement measures on the above problems.First of all,the identity of the procuratorial organ in the first instance should be the party concerned and should be defined as the appellant in the second instance procedure.This is not only conducive to the realization of the balance between the Court,the procuratorial organs and the parties,but also can effectively coordinate the relationship between the procuratorial organs and other suitable subjects;second,the legislature should further expand the scope of the prosecution service in the Public Interest litigation system and the source of clues.Consumer infringement cases other than food and drug safety should be included in the scope of civil public interest litigation brought by the procuratorial authorities,and in line with the scope of consumer civil public Interest litigation cases brought by other suitable subjects.At the same time,the source of case clues should not be limited to the internal procuratorial organs,but should actively expand the external channels of the source of the case,and thirdly,we should actively explore the path of perfecting the litigation procedure of the procuratorial organs.The pre-litigation procedure needs to play the role of procuratorial organ and other suitable subjects at the same time,and the procuratorial organ can give more help to other suitable subjects in the course of litigation.At the same time,the special litigation jurisdiction of procuratorial organs,as well as litigation mediation and settlement procedures should be stipulated.Finally,this paper holds that the legislation should stipulate that the procuratorial organs should put forward the content of the claim for damages in the course of the lawsuit.This right of claim for damages is different from the right of claim for damages put forward by the aggrieved consumer,and its compensation standard should be equivalent to the right of claim forwrongful proceeds in German law.Because compared with the general claim of damages,it is more reasonable to leave the calculation standard of the right of claim for illegal income,and it can be combined with the right to claim punitive damages put forward by the general consumer.It still needs the constant exploration of theory and practice that the procuratorial organ brings up the system of consumption civil public interest litigation in our country for a short time.In theory,we can learn from the successful legislative experience of foreign countries and combine with the specific facts of our country.In practice,it is necessary to improve the legal literacy of case handlers,absorb experience in different cases,and further improve legislation.
Keywords/Search Tags:public interest litigation, consumer rights and interests, Public Prosecutor's Office, pre-litigation procedure
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