民事公益诉讼主体的范围

发布时间：2019-02-11 15:30

【摘要】：近些年以来，一系列公害事件层出不穷，“三鹿奶粉”案、“苏丹红”案和松花江水污染案等引起了公众的广泛关注。我国处于经济社会发展转型期，公共利益受到侵害的事件增多不可避免，我国民事传统诉讼理念和司法实践都无法适应保障社会公共利益的需要。传统囿固于私益保护的民事诉讼程序以及国家利益主导的行政手段显然无法触碰到公共利益领域，实践发育、理论生长下的民事公益诉讼愈来愈引起人们的关注①。在民事传统诉讼理论中，成为适格的民事诉讼起诉主体，，必须具备两点：一是自己必然是受害人，包含了财产损失、人身损害和精神损害；二是与案件有直接实体法意义上的利害关系②。在目前出现侵害公共利益的案件，表现出显著的主体不特定性和无直接利害关系的特征，人数众多、利益受损者不特定导致公益诉讼“起诉难、举证难”，同时起诉主体与应诉主体的力量悬殊在现实中存在，导致受害者难以通过司法救济的途径获得弥补。法治化进程的推进，《民事诉讼法》的修订积极回应了理论界和实务界的呼声，这在制度上为公益诉讼提供了法律前提，公益诉讼能够写入民事诉讼法中，是一件值得称赞的立法举动，这种为公共利益而战的诉讼程序被认可，一定程度上结束了长期以来司法途径救济公共利益的法律窘况，相较于以往环境和消费者侵权案件中代表人诉讼“一对一”诉讼模式，公益诉讼显然扩展了起诉主体的范围，为国家机关、社会团体提起公益诉讼提供了法律基础。但相配套的制度保障架构并未形成，“零受案率”的尴尬情境仍然继续上演，除了受案范围之外，迫切需要解决的就是民事公益诉讼主体的进一步明确③。随着学术界对于民事公益诉讼的研究业已成熟，民事公益诉讼主体范围的争论并未因立法而终止，相反，因《民事诉讼法》第55条的规定语焉不详，造成了理论界的较大分歧，司法实务界的手足无措。“法律规定”是哪些法律？是民事法，行政法，还是“经济法”？尤其经济法的规范性法律文件条款多兼具民事性和行政性的特征，也给进一步的“民事”公益诉讼主体范围确定造成了难度。“机关”如何认定？是行政机关，检察机关，还是行政机关？若在检察机关的组织法中明确检察机关可以提起公益诉讼，那么检察机关是否符合法律规定的“机关”条件？若行政立法指引特定的行政机关可以提起民事赔偿，那么行政机关是否也会被纳入到民事公益诉讼的主体范围之中？“有关组织”仅指公益性社会团体吗？此处的“有关”是否蕴含着公益诉讼主体资格不必严守“直接利害关系人”的确定标准？这些问题的提出都证明了，法案的颁行不是终点，而恰是法律适用的起点，公益诉讼的建立与展开尚需拨开这些迷雾。
[Abstract]:In recent years, a series of pollution incidents have emerged in endlessly, "Sanlu milk powder" case, "Sudan red" case and Songhua River water pollution case have aroused widespread public concern. Our country is in the economic and social development transition period, the public interest is infringed the event to be increased inevitably, our country civil tradition lawsuit idea and the judicial practice can not adapt to safeguard the social public interest the need. The traditional civil procedure bound to the protection of private interests and the administrative means dominated by national interests obviously can not touch the field of public interest. The practice of the development of civil public interest litigation under the growth of theory has attracted more and more people's attention. In the traditional civil litigation theory, to be the suitably subject of civil action, we must have two points: first, we must be the victim, including property loss, personal injury and spiritual damage; Second, the case has a direct substantive sense of interest 2. In the current cases of infringement of the public interest, there are significant characteristics of non-specificity of the subject and no direct interest, the large number of people, the interests of the injured does not lead to the public interest litigation "difficult to sue, difficult to prove". At the same time, the power difference between the subject of prosecution and the subject of responding to the complaint exists in reality, which makes it difficult for the victim to make up for it through the way of judicial remedy. With the advancement of the process of ruling by law, the revision of the Civil procedure Law responds positively to the voice of the theorists and the practitioners, which provides a legal premise for the public interest litigation, which can be written into the civil procedure law. It is a laudable legislative move, which is recognized as a procedure for fighting for the public interest, ending to a certain extent the long-standing legal dilemma of judicial remedies for the public interest. Compared with the "one-to-one" litigation mode in the past environmental and consumer tort cases, public interest litigation has obviously expanded the scope of the subject of prosecution and provided a legal basis for the public interest litigation by state organs and social organizations. However, the corresponding institutional security framework has not been formed, and the embarrassing situation of "zero acceptance rate" is still on. In addition to the scope of receiving cases, what needs to be solved urgently is the further clarification of the subject of civil public interest litigation. With the academic research on civil public interest litigation has matured, the debate on the subject scope of civil public interest litigation has not been terminated by legislation. On the contrary, the provisions of Article 55 of the Civil procedure Law are not clear, which has caused great differences in the theoretical circle. The judicial practice is at a loss. What are the "legal provisions"? Is it civil law, administrative law, or "economic law"? In particular, the provisions of normative legal documents of economic law have both civil and administrative characteristics, which also make it difficult to determine the scope of the subject of civil public interest litigation. How can the "organ" be identified? Is it the administrative organ, the procuratorial organ, or the administrative organ? If it is clear in the organic law of the procuratorial organ that the procuratorial organ can file a public interest lawsuit, does the procuratorial organ meet the requirements of the "organ" stipulated by law? If the administrative legislation guides the specific administrative organs to bring civil compensation, then will the administrative organs be included in the scope of the civil public interest litigation? Does "relevant organization" refer only to public welfare social groups? Does the "relevant" here imply that the qualification of the subject of public interest litigation does not have to strictly adhere to the "direct interested person" determination criteria? These problems have proved that the enactment of the bill is not the end, but is the starting point of the application of the law, the establishment and development of public interest litigation still need to remove these fog.
【学位授予单位】：太原科技大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1

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