论民事督促起诉——对国家利益、公共利益监管权的监督

On the Urging of Civil Prosecution

民事督促起诉是指针对正在流失或即将流失的国有资产,监管部门不行使或懈怠于行使自己的监管职责,检察机关以监督者的身份,督促有关监管部门履行自己的职责,依法提起民事诉讼,保护国家和社会公共利益。这种监督方式既是对国家和社会公共利益的一种公力救济,又具有典型的监督属性,它始终以公权力监督为贯穿主线,体现为对有关国家和社会公共利益的监管部门的直接监督、有限监督。这是近年来民事检察实践中正在探索的一种新的监督方式,理论上的研究尚属罕见。据此,从国家利益、公共利益优先权和公力救济有限性的角度,对民事督促起诉的范围、条件,以及民事督促起诉与民事公诉衔接等程序问题作初步探讨。

This paper sets forth the urging of civil prosecution, which means that regarding the administrative or supervision department that fails to perform its responsibility or is remiss in performing its responsibility when state-owned assets are or will be draining, the procuratorial department as a supervisor should urge the said department to perform the latter^s responsibility, or according to law institute a civil action in order to protect the public interests of the state and the society. The paper considers this pattern of supervision in China as a public relief to the said public interests and having the nature of typical supervision as well. This public supervision reflects a direct supervision and a limited supervision over the supervision department for the public interests of the state and the society. That is a new kind of supervision, which is being explored in civil prosecutorial practice these years, and related researches have rarely been done. Given this, it is necessary to study the range and the condition of urging of civil prosecution and the procedures linking up the urging of civil prosecution and civil public prosecution from the perspectives of state interest, public interest, commonweal preference and limitation of public relief.