民事诉讼检察监督的职权配置和程序设计

Power Distribution and Proceedings Design concerning the Procuratorial Supervision of Civil Procedure

我国民事诉讼检察监督的职权配置应当贯彻基础正当、有利于维护民事诉讼秩序、现实必要和可行、维护公正和公益的原则。职权配置的内容应当全面和开放,包括对起诉的监督和对裁判行为、执行行为的监督,但行使职权时应当有所限制和谦抑;监督的重心环节应当适当前移。行使职权的方式包括提起诉讼、参与诉讼、抗诉等,相伴随的程序应当明确、具体、刚性、效率。同时,检察机关应当具备保障性职权。职权行使的体制也应当进一步改革。

In the power distribution of the procuratorial supervision of civil procedure, it should carry out the principles of foundational legitimacy, being in favor of the order of civil procedure, realistic necessity and feasibility, and maintenance of impartiality and interests. The content of power distribution should be complete and open, which include the supervision to the commencement of action, to the adjudication, and to the execution. However the procuratorial power in civil procedure should be exerted with limitation and modesty, and the supervision should focus on the anterior phase of the civil procedure. The power may be exercised by bringing a lawsuit, participating in the proceedings, and protesting against a judgment, going with a clear, concrete, rigid and effective procedure. The procuratorial organ should have supporting power at the same time and the mechanism of power exertion she uld be further reformed.