Based on the advantages of the system to highlight the value function of procuratorial public interest litigation

2022-06-02 0 By

China’s public interest litigation system has embarked on a prosecutor-led “nationalization path”.After obtaining legal authorization, procuratorial organs become the leading force in the practice of public interest litigation system, and have excellent performance in the number of cases handled, effect and influence.Since the system of procuratorial public interest litigation was formally incorporated into the law, procuratorial organs throughout the country have filed about 90 percent of all public interest litigation cases concluded by the people’s courts in the same year.This is only the case brought by the procuratorial organ. In practice, nearly 90% of procuratorial public interest litigation cases are handled through the pre-lawsuit procedure.Moreover, different from the public interest litigation system in other countries, “only our Procuratorial organs in China can bring a real sense of administrative public interest litigation, which is the first in the world.”Prosecutor-led practice of public interest litigation system has become another example of “independent approach” in the process of the rule of law in China.Where does the practical logic of the “independent approach” of the public interest litigation system come from?Why does the procuratorial organ have the dominant position?It is necessary to dig deeply and trace back the essence, function and purpose of procuratorial public interest litigation system.According to the law, procuratorial organs handling public interest litigation cases should go through three stages: filing, pre-lawsuit procedure and litigation procedure.The pre-litigation procedure is a necessary procedure in public interest litigation.When it is found that the public interest in a specific field is damaged, the procuratorial organ should urge the functional departments of the government to perform their duties according to law or urge and support other statutory subjects to file public interest lawsuits before bringing a lawsuit to the court.In practice, nearly 90% of prosecutorial public interest litigation cases are successfully solved before litigation, and the pre-procedure has become the main body of the system.This shows that procuratorial public interest litigation has gone beyond the meaning of litigation and become a judicial system with special nature.Therefore, some scholars put forward that “we should understand the non-litigation event handling procedure based on the principle of authority, and explore its intrinsic nature and attributes from the perspective of procuratorial organs and people’s courts jointly dealing with public welfare events”.First of all, the dominant pre-litigation procedure means that the substantial disputes in most procuratorial public interest litigation cases are not solved through judicial means, but through administrative power promotion or self-correction of law-breaking subjects.The essence of litigation is the confrontation between two parties, and the judge judges independently.Different from ordinary civil and administrative litigation cases, the vast majority of prosecutorial public interest litigation cases have not entered the court acceptance stage, let alone handed over to judges for trial and judgment.Secondly, the success rate of the pre-prosecution procedure is high, and most of the appeals of procuratorial public interest litigation cases are realized.In 2020, out of 137,000 administrative public interest litigation cases handled by procuratorial organs across the country, 118,000 procuratorial suggestions were issued before litigation, with 99.4 percent of administrative organs responding to them.Most of the recommendations made by the prosecution through the pre-trial procedure are implemented, which is quite different from the legal procedure.The litigation risk exists objectively and the litigation result is uncertain.Finally, the pre-litigation procedure of procuratorial public interest litigation maintains the public interest through the exercise of the procuratorial organ’s right of legal supervision, and forms an institutional synergy with the court’s litigation procedure to safeguard the public interest through judicial judgment, so as to realize the purpose of “litigation” in advance in a “non-litigation” way as far as possible.There are three kinds of powers superimposed in the design logic of procuratorial public interest litigation system: the legal supervision power of procuratorial organs, the administrative law enforcement power of administrative organs and the judicial judgment power of judicial organs.The power of legal supervision drives the power of administrative law enforcement and is guaranteed by the power of judicial judgment as the final means of relief.This system design not only ensures the autonomy of administrative power, but also saves judicial resources and optimizes the allocation of judicial powers.It not only conforms to the basic law of division of state power, but also contributes to the modernization of national and social governance.This essential feature of the design of procuratorial public interest litigation system should be the key for us to understand and make good use of this system.Procuratorial public interest litigation system aims to promote administration according to law and safeguard public interests in the final sense of the procuratorial organs to initiate public interest litigation system is to safeguard public interests, which is a self-evident conclusion.The constitution of the procuratorial organ is the national legal supervision organ, which exercises the right of legal supervision, that is, the right to maintain the unity and correct implementation of the law. It is not the right to enforce the law directly, but the right to supervise and urge the subjects of public power and private power to correctly enforce the law.This is the internal logic of the pre-litigation procedure design of procuratorial public interest litigation system.At the fourth Plenary Session of the 18th CPC Central Committee, General Secretary Xi Jinping specifically explained the establishment of the public interest litigation system by procuratorial organs, highlighting that “public interest litigation by procuratorial organs is conducive to optimizing the allocation of judicial powers, improving the administrative litigation system, and promoting the construction of a law-based government.”It can also be seen that “promoting administration by law, promoting the construction of government by law” is the implied and very important starting point of this system design.The Supreme People’s Procuratorate’s report on procuratorial work in public interest litigation also clearly points out that “the essence of procuratorial work in public interest litigation is to help administer according to law and jointly safeguard the fundamental interests of the people”.The procuratorial public interest litigation system is derived from the procuratorial organ’s legal supervision function, and is a special judicial system that surpasses the litigation system in essence.In terms of the division of power at the national level to safeguard public interests, administrative organs, procuratorial organs and judicial organs have a clear division of labor, each performing its own duties and responsibilities.Administrative organs perform the principal responsibility of administrative supervision, procuratorial organs perform the supervision responsibility of urging and urging administration in accordance with the law, and judicial organs perform the ultimate judicial relief responsibility of settling disputes.From the perspective of genetics, the direct responsibility of maintaining public interests lies in the bearer of public interests, that is, ecological environment and resource protection, food and drug safety, state-owned property, state-owned land users and other relevant subjects.In the event of public welfare damage, the first line of defense is the administrative supervision department as the main body of law enforcement.Administrative organs have professional personnel and financial input in the field of public welfare protection, as well as the professional knowledge and skills needed to perform the public welfare protection function, so they can implement all-round protection of public interests in prevention, governance, emergency response and other aspects.The environmental Protection Law, the Law on the Protection of consumer rights and Interests, the Law on Land Management and other laws related to the protection of public interests uphold the legislative ideas led by the executive power, and all these laws without exception authorize the specific functional departments of the government to enforce the law inspection, administrative punishment and other administrative powers.According to the principle of division of functions and powers of state organs, who is responsible for the issues under the priority to solve.When it comes to the protection of public interests, the principle of administrative priority or the principle of exhaustion of administrative relief should be adhered to before filing public interest litigation.This is an important principle for countries under the rule of law to handle administrative disputes and promote law-based administration.Administrative agencies have the power and ability to resolve disputes and problems arising from their management practices.This principle is conducive to ensuring the autonomy of administrative power, avoiding the loss of the necessary opportunity for administrative organs to correct their shortcomings and mistakes, improving the efficiency of solving illegal problems, and reducing the burden of judicial litigation.Administrative organs are directly responsible for the protection of public interests, and are also the most competent departments to directly promote the solution of problems.The law stipulates that the pre-litigation procedure is a necessary procedure in the procuratorial public interest litigation system.In specific practice, procuratorial organs require consultation with administrative organs as a necessary procedure to put forward procuratorial suggestions, take the initiative to communicate with government leaders in charge of the case clues obtained, and listen to the opinions of government departments.The handling of cases shows that after procuratorial organs issue procuratorial suggestions in accordance with the law, the vast majority of administrative organs take active actions and perform their duties in accordance with the law, and the vast majority of problems are solved in this link.The procuratorial organs not only prudently filed the case, but also voluntarily withdrew the case even after the case was prosecuted, as long as the administrative organs rectified the case before the judgment was made.Article 12 of the Interpretation of The Supreme People’s Court on Several Issues concerning the Application of The Law to the Trial of Environmental Civil Public Interest Litigation Cases also stipulates that, “After accepting environmental civil public interest litigation, the people’s court shall inform the department responsible for the supervision and management of environmental resources protection of the defendant within 10 days.”This is not only to fulfill the obligation to inform, but also to set a buffer period for administrative organs to perform their supervisory duties.It also insists on giving priority to administration and makes full use of administrative methods to solve administrative problems.These procedures provide institutional space for ensuring the rational and orderly operation of administrative power, legal supervision power and judicial power in their respective legal track.The system function of procuratorial public interest Litigation Maintaining the unity of law and order “scientific legislation, strict law enforcement, impartial administration of justice, law abiding by the whole people” is the “new sixteen character policy” of the rule of law in the new era.Considering the cost of the operation of the rule of law to safeguard the public interest, the ideal state is to consciously abide by the law to safeguard the public interest, then strictly enforce the law to correct the illegal behavior, and finally just correct the deviation in the law and law enforcement.In the pre-litigation procedure design of procuratorial public interest litigation system, the procuratorial organ plays a role beyond the entity dispute itself in supervising and abiding by law and enforcing the law. Behind the law-keepers and law-enforcers, it plays a functional role in maintaining the unity of law and order, and also avoids various difficulties in implementing the law by directly relying on judicial procedures.Failure to consciously abide by the law is a violation of law and order, failure to strictly enforce the law is a second violation of law and order.The pre-prosecution procedure of prosecutorial public interest litigation is the simultaneous supervision of the two damages, and it chooses a supervision mode with the lowest cost, directly acts on the “secondary damages”, so as to realize the correction of the “primary damages”, and maintains the unity of legal order in this way.Procuratorial civil public interest litigation and administrative public interest litigation have the same purpose of normative protection, and the scope of accepting cases has a high degree of overlap.The nature difference of public interest and private interest determines the difference of their protection norms.The former is mainly regulated and protected by the norms of public law, while the latter is mainly regulated and protected by the norms of private law.The illegal acts of the supervision of civil public interest litigation are not the objects of the adjustment of civil law norms, but mainly the acts of violating administrative laws and regulations such as environmental protection law and forest law, which are the acts of violating public law.In the maintenance of public law order can be prosecutorial civil public interest litigation and prosecutorial administrative public interest litigation both unified.Therefore, we should understand the system design of procuratorial public interest litigation in a larger pattern.It has the nature of surpassing ordinary litigation procedure and embodies the special effect of communicative and consultative supervision in practice.Compared with the litigation procedure, the procuratorial public interest litigation pre-litigation procedure is an open communication mechanism with multi-subject participation, which is not restricted by the form of administrative control, and it is easy to reveal the problems that administrative control does not find or is not willing to present.These problems often involve deep-seated problems such as legislative gaps, legislative loopholes or unspoken rules in law enforcement.If all parties reach consensus on relevant issues through procuratorial public interest litigation, the unity of the rule of law will be maintained.Procuratorial public interest litigation by before litigation procedure of procuratorial advice also tend to be copied to National People’s Congress, the Chinese people’s political consultative conference (CPPCC), administrative organs, the competent department, etc., can play at a higher level to promote the solution of the such universal problems as environmental pollution, law enforcement is lax, also can have unexpected positive dissemination effect, the attorney of the mobilization of public interest litigation is the process of a vivid public class under the rule of law.Prosecution of public interest litigation system to their advantage in the future construction of the procuratorial organs filed a public interest litigation test is spontaneous, prosecutors to establish legislation on the subject qualification is decision makers in the early period of the procuratorial organ performance based comprehensive consideration and give the procuratorial system of public interest litigation practice dominant status is the result of the procuratorial organs own efforts, but also institutional strengths in comparison.Based on the current situation of the procurator-led system, the nature of the system beyond ordinary litigation and the purpose of promoting administration according to law, the direction of future system construction can be: on the one hand, the system of prosecuting organs bringing public interest litigation should have rigid factors different from ordinary litigation.For example, the exercise of the right to investigate, verify and collect evidence should be effectively guaranteed by legislation.To explore granting procuratorial public interest litigation investigation power to seal up, detain, freeze, order to immediately stop infringement and other mandatory measures similar to administrative investigation;We will explore ways to establish a third-party evaluation mechanism for the rectification of procuratorial suggestions, and introduce external and non-governmental forces to urge administrative organs and tort subjects to earnestly fulfill their responsibilities.On the other hand, the “waiting period” of public interest litigation should be treated rationally.Facing the risk of loss of evidence or aggravation of damage in environmental pollution cases, we can not only consider entrusting procuratorial organs with the execution power of evidence preservation, but also establish the system of provisional injunction before litigation.Moreover, in specific cases, such as poisoning and pollution emergencies, an exceptional procedure can be set up, stipulating that the procuratorial organ can directly file a lawsuit in an emergency without prior notification.In civil public interest litigation, in view of the procuratorial organs prosecution after social organization also asked by the litigation, litigation costs and timeliness of evidence and incentives to participate in the public interest litigation, different subjects can let social organizations as the plaintiff to participate in litigation, while still by the procuratorial organs as a civil lawsuit main body, and don’t have to be dropped after changed to support the prosecution.These contents may be considered together in future unified legislation.(Source: Procuratorial Daily by Chen Lei, Institute of Procuratorial Theory, Supreme People’s Procuratorate)