论我国检察机关提起民事公益诉讼制度的构建
发布时间：2019-07-06 18:23
【摘要】：本文在理解民事公益诉讼制度和我国检察机关提起民事公益诉讼的基本依据的基础上,对国外典型制度及我国现行立法进行比较分析,进而立论我国检察机关提起民事公益诉讼的正当性,最后对检察机关提起民事公益诉讼的制度建构、程序设置等进行具体的构想。全文除引言和结语外分为六部分进行论述。 第一部分是民事公益诉讼的理论界定。笔者首先对公益诉讼进行简要论述,在理解公益诉讼的基础上去理解民事公益诉讼,又对民事公益诉讼和行政公益诉讼进行比较,从而更能对民事公益诉讼的内涵有深刻地认识。本章还对民事公益诉讼的特点和受案范围进行论述,从而为检察机关的介入奠定基础。 第二部分是我国检察机关提起民事公益诉讼的基本依据。本章从理论依据和法律依据着手论证。检察机关是我国的法律监督机关,其职能与职责和中立性都其提起民事公益诉讼提供了理论依据。同时,国家干预原理、诉讼担当理论也是其理论依据之一。在我国,检察机关提起民事公益诉讼是有法律依据的,本文从宪法、实体法、诉讼法三方面进行论述。 第三部分是检察机关提起民事公益诉讼的国外立法考察。笔者对以法国、德国、日本、俄罗斯为代表的大陆法系国家和以英国、美国为代表的英美法系国家的民事公益诉讼制度进行考察,在充分肯定两大法系国家的先进立法外,总结了两者的共同点和差异以及存在的不合理之处。从而得出在我国建立民事公益诉讼制度应该借鉴和摒弃的地方。 第四部分是我国检察机关提起民事公益诉讼的法律现状及实践探索。我国关于检察机关提起民事公益诉讼制度在立法上几乎是空白的,但是我国司法实践中是存在的,并且各地检察机关在提起民事公益诉讼制度方面做出了有益探索和取得一定成绩。 第五部分是我国检察机关提起民事公益诉讼的正当性分析。本章从必要性和可行性进行论证。我国人权保护、程序正义、公平公正和检察机关自身的优越条件都要求建立符合我国国情的民事公益诉讼制度。并且,我国在法律上并未排斥民事公益诉讼制度、检察机关在实践中所取得的成功经验和对有关外国先进立法国家的制度进行借鉴三方面的基础上构建我国的检察机关提起民事公益诉讼是可行的。 第六部分是我国检察机关提起民事公益诉讼制度的构想。笔者对检察机关在民事公益诉讼中的法律地位、提起公诉的方式、证明责任的分配、调解及反诉的问题和费用分担问题五个方面进行设置。另外,在程序上进行了立案、取证、起诉和审判四个阶段的设置。这些设置是参照我国民事诉讼法和刑事诉讼法的基础上进行的,期望能够构建符合我国国情的制度。
[Abstract]:On the basis of understanding the system of civil public interest litigation and the basic basis of initiating civil public interest litigation by procuratorial organs in our country, this paper makes a comparative analysis of the typical foreign systems and the current legislation of our country, and then discusses the legitimacy of the initiation of civil public interest litigation by procuratorial organs in our country, and finally makes a concrete conception on the system construction and procedure setting of civil public interest litigation initiated by procuratorial organs. In addition to the introduction and conclusion, the full text is divided into six parts to discuss. The first part is the theoretical definition of civil public interest litigation. First of all, the author briefly discusses public interest litigation, understands civil public interest litigation on the basis of understanding public interest litigation, and compares civil public interest litigation with administrative public interest litigation, so as to have a profound understanding of the connotation of civil public interest litigation. This chapter also discusses the characteristics and scope of civil public interest litigation, so as to lay the foundation for the intervention of procuratorial organs. The second part is the basic basis of civil public interest litigation initiated by procuratorial organs in our country. This chapter starts from the theoretical basis and the legal basis to demonstrate. Procuratorial organ is the legal supervision organ of our country, its function, duty and neutrality all provide the theoretical basis for initiating civil public interest litigation. At the same time, the principle of state intervention, litigation theory is also one of its theoretical basis. In our country, there is a legal basis for procuratorial organs to bring civil public interest litigation. This paper discusses from three aspects: constitution, substantive law and procedural law. The third part is the foreign legislation investigation of civil public interest litigation initiated by procuratorial organs. The author investigates the civil public interest litigation system of civil law countries represented by France, Germany, Japan and Russia, and the civil public interest litigation system of common law countries represented by Britain and the United States. In addition to fully confirming the advanced legislation of the two legal countries, the author summarizes the common points and differences between the two countries, as well as the unreasonable points. Thus, it is concluded that the establishment of civil public interest litigation system in our country should be used for reference and abandoned. The fourth part is the legal status and practical exploration of civil public interest litigation initiated by procuratorial organs in our country. In our country, the system of civil public interest litigation initiated by procuratorial organs is almost blank in legislation, but it exists in the judicial practice of our country, and the procuratorial organs in various places have made beneficial exploration and made some achievements in bringing up civil public interest litigation system. The fifth part is the legitimacy analysis of civil public interest litigation initiated by procuratorial organs in our country. This chapter demonstrates the necessity and feasibility. The protection of human rights, procedural justice, fairness and justice and the superior conditions of procuratorial organs all require the establishment of civil public interest litigation system in accordance with the national conditions of our country. Moreover, China does not exclude the civil public interest litigation system in law, and it is feasible to construct the civil public interest litigation initiated by the procuratorial organs on the basis of the successful experience gained by the procuratorial organs in practice and the reference to the system of the foreign advanced legislative countries. The sixth part is the conception of civil public interest litigation system initiated by procuratorial organs in our country. The author sets up the legal status of procuratorial organs in civil public interest litigation, the way of public prosecution, the distribution of burden of proof, the problems of mediation and counterclaim, and the problem of cost sharing. In addition, the procedure has been set up in four stages: filing, taking evidence, prosecution and trial. These settings are based on the civil procedure law and criminal procedure law of our country, hoping to construct the system in line with the national conditions of our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925;D926.3
本文编号：2511244
[Abstract]:On the basis of understanding the system of civil public interest litigation and the basic basis of initiating civil public interest litigation by procuratorial organs in our country, this paper makes a comparative analysis of the typical foreign systems and the current legislation of our country, and then discusses the legitimacy of the initiation of civil public interest litigation by procuratorial organs in our country, and finally makes a concrete conception on the system construction and procedure setting of civil public interest litigation initiated by procuratorial organs. In addition to the introduction and conclusion, the full text is divided into six parts to discuss. The first part is the theoretical definition of civil public interest litigation. First of all, the author briefly discusses public interest litigation, understands civil public interest litigation on the basis of understanding public interest litigation, and compares civil public interest litigation with administrative public interest litigation, so as to have a profound understanding of the connotation of civil public interest litigation. This chapter also discusses the characteristics and scope of civil public interest litigation, so as to lay the foundation for the intervention of procuratorial organs. The second part is the basic basis of civil public interest litigation initiated by procuratorial organs in our country. This chapter starts from the theoretical basis and the legal basis to demonstrate. Procuratorial organ is the legal supervision organ of our country, its function, duty and neutrality all provide the theoretical basis for initiating civil public interest litigation. At the same time, the principle of state intervention, litigation theory is also one of its theoretical basis. In our country, there is a legal basis for procuratorial organs to bring civil public interest litigation. This paper discusses from three aspects: constitution, substantive law and procedural law. The third part is the foreign legislation investigation of civil public interest litigation initiated by procuratorial organs. The author investigates the civil public interest litigation system of civil law countries represented by France, Germany, Japan and Russia, and the civil public interest litigation system of common law countries represented by Britain and the United States. In addition to fully confirming the advanced legislation of the two legal countries, the author summarizes the common points and differences between the two countries, as well as the unreasonable points. Thus, it is concluded that the establishment of civil public interest litigation system in our country should be used for reference and abandoned. The fourth part is the legal status and practical exploration of civil public interest litigation initiated by procuratorial organs in our country. In our country, the system of civil public interest litigation initiated by procuratorial organs is almost blank in legislation, but it exists in the judicial practice of our country, and the procuratorial organs in various places have made beneficial exploration and made some achievements in bringing up civil public interest litigation system. The fifth part is the legitimacy analysis of civil public interest litigation initiated by procuratorial organs in our country. This chapter demonstrates the necessity and feasibility. The protection of human rights, procedural justice, fairness and justice and the superior conditions of procuratorial organs all require the establishment of civil public interest litigation system in accordance with the national conditions of our country. Moreover, China does not exclude the civil public interest litigation system in law, and it is feasible to construct the civil public interest litigation initiated by the procuratorial organs on the basis of the successful experience gained by the procuratorial organs in practice and the reference to the system of the foreign advanced legislative countries. The sixth part is the conception of civil public interest litigation system initiated by procuratorial organs in our country. The author sets up the legal status of procuratorial organs in civil public interest litigation, the way of public prosecution, the distribution of burden of proof, the problems of mediation and counterclaim, and the problem of cost sharing. In addition, the procedure has been set up in four stages: filing, taking evidence, prosecution and trial. These settings are based on the civil procedure law and criminal procedure law of our country, hoping to construct the system in line with the national conditions of our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925;D926.3
【引证文献】
相关硕士学位论文 前1条
1 马燕;检察机关提起民事公益诉讼研究[D];西南交通大学;2012年
，本文编号：2511244
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