检察机关提起民事抑或行政公益诉讼

On the Civil or Administrative Public Interest Litigation Instituted by Procuratorial Organ

《民事诉讼法》和《行政诉讼法》专家修改建议稿均提出了检察机关提起公益诉讼的立法建议,既有相同点,也有不同之处。检察机关提起民事抑或行政公益诉讼的案件范围大部分是相同的,因为公益诉讼保护的利益是公共利益,但有的案件的固有属性是"民事",行政行为违法侵犯国家利益和社会公共利益则属于"行政"的范畴;提起民事公益诉讼的被告是实施民事违法行为的公民、法人或其他组织,提起行政公益诉讼的被告是实施违法行政行为的行政机关;在程序构建方面有较多相似之处,但检察机关提起民事公益诉讼属于民事诉讼程序,提起行政公益诉讼属于行政诉讼程序,二者在行政前置程序和举证责任的分配两个方面有重大区别。

It is proposed by experts for procuratorial organ to institute a public interest litigation in the dratfs of civil procedure law and administrative law. There are still some differences, in spite of many similarities between them. Since public interest litigation aims at protecting public interest, it is same in scope for most of the civil or administrative public interest cases, which are instituted by procuratorial organ. But some inherently belong to the civil case; the others belong to the administrative case for the administrative malfeasance to violate national interests and public interests. The defendant, in civil pub- lic interest litigation, are citizens, legal entities or other organizations who violate civil law, but the de- fendant, in administrative public interest litigation, is administrative organ who executes illegally. There are many similarities between them in procedural construction; however, civil public interest liti- gation belongs to civil procedure, and administrative public interest litigation belongs to administrative procedure, although both of them are brought by procuratorial organ. There are significant differences between them in administrative pre--procedure and the allocation of the burden of proof.