| In recent years,due to the rapid development of the market economy,the defects of spontaneity and blindness have been gradually exposed,and illegal and criminal acts in the fields of food,medicine,ecological environment,consumption and so on have been constantly occurring,and have become increasingly fierce.Some acts not only have criminal illegality but also seriously violate social public welfare.In the face of the new social reality,the existing legal norms have obviously lagged behind,and there are institutional loopholes for the protection of social public welfare.Because of the previous norms on civil public interest litigation,although social organizations that have been registered for five years and have no illegal acts can file civil public interest litigation,because the organization in this area of our country is not perfect and starts late,Operation and governance are not perfect,its impact in society and limited by less funds,so that these organizations can not act effectively.As a result,after the infringement occurs,there is no corresponding organization to file a lawsuit or the lawsuit is not timely,resulting in the crime and tort can not be stopped and pursued in time,the damaged interests can not be fully timely and effective relief.In addition,the previous criminal incidental civil litigation system,because it only protects the material interests directly infringed by the crime,and the procuratorial organs can only sue when the collective property and the state property are violated,The social public welfare can not be effectively maintained through the system.Therefore,it is necessary to establish a new system to make up for the loopholes of the current public interest litigation system,so that the social public welfare can avoid the damage of crime or get timely,full and effective relief after the damage,so as to protect the reform and development of our country.In order to achieve this goal,the procuratorial organs to initiate public interest litigation pilot work in the land of Shenzhou surging.By 2018,in the case of summing up the practical experience and combining the litigation theory,the two high schools issued the interpretation of some problems on the applicable law of procuratorial public interest litigation cases(hereinafter referred to as "the two high interpretations ").In order to effectively deal with the system problems mentioned above,Article 20 formally established the criminal incidental civil public interest litigation system.Although the legislative purpose of the system is very perfect,as a new type of system,there are some problems in the system at present:first,the direct legal basis for criminal incidental civil public interest litigation is only article 20 of the two High interpretations.And this article still has certain suspicion of violating the legislative law.Although article 26 of the Code also provides for the application of the Code of Civil Procedure and the Code of Administrative Procedure to matters not covered by the Two High Interpretations.However,there are different understandings on whether civil procedure law can be used as the basis of civil public interest litigation.Whether the criminal procedure law can be applied is also controversial.Second,the status of the procuratorate dispute.Some scholars believe that the status of procuratorial organs in the first instance should not be the public interest litigation prosecutor,but the plaintiff.In the second instance and retrial,the legal norms of procuratorial organs’ litigation status are not stipulated,so there are disputes in theory and practice.Third,the scope of criminal incidental civil public interest litigation is vague;for which cases belong to the scope of criminal incidental civil public interest litigation,based on the problems existing in the legislative technology of enumeration and generalization,The court is not easy to grasp the scope of the case in practice.Fourth,the main obstacle of litigation.Because the legal norms are relatively general,the law does not stipulate the inconsistency between the tort subject and the criminal defendant in practice.Fifth,the application of the rules of evidence is not clear and so on.In view of these problems,combined with judicial practice and theoretical research,can be solved through the following ways: First,according to the nature of civil public interest litigation attached to criminal crimes,it should be clear that the Civil Procedure Law is its legal basis.Second,it is clear that the status of the procuratorial organ in the first instance is the plaintiff,the status in the second instance is the appellant or the appellee,and the position in the retrial is the legal supervision organ.Third,it is clear that only the actionable public interest violated by the criminal acts and simultaneously constitute civil tort can fall within the scope of civil public interest litigation incidental to criminal crimes.Fourth,through the way of legislation or amending the current law,the subject is unanimously clearly stipulated as the conditions for the acceptance of cases.Fifth,it is clear that procuratorial organs can take not only arbitrary investigation and verification measures,but also compulsory investigation and verification measures in criminal proceedings.Compulsory investigation and verification measures include indirect investigation and verification,and also include direct investigation and verification. |
