检察机关不宜成为民事公益诉讼的主体——以新修订的民事诉讼法为视角

The prosecutorial organ should not become the subject of civil public welfare lawsuit——From the viewpoint of new Civil Procedural Law

虽然现行法律没有对检察机关可以作为民事公益诉讼的主体做出明确规定,但是实践中个别地区检察院以原告身份提起了公益诉讼并得到法院的认可。然而检察机关的民事公益诉讼主体资格在实践与理论中仍有较大的争议。从法理、社会管理、公益保护、现行法律四个方面论证得出检察机关不宜成为民事公益诉讼的主体。检察机关保护公共利益应当立足法律监督职权充分发挥民事行政检察权、职务犯罪侦查权、公诉权等现有权能的效用,唯有此才可从源头减少公共利益被侵害。

Although the current law did not stipulate that the prosecutorial organ could become a subjective of civil public welfare lawsuit, some organs had taken legal actions about the public interests as the plaintifls and got the support from the court. However, the prosecutorial organ as the public interest litigation subject is still debatable practically and theoretically. From the following 4 aspects, jurisprudence, social management, public interest protection and current laws, the prosecutorial organ should not become the subject of civil public welfare lawsuit. The protection of the public interests should be based on the legal supervision power, fully play the effects of civil administrative pros- ecutorial power, duty criminal investigation power and public prosecutorial power to decrease the infringement of public interest from the source.