论公益诉讼的诉讼标的及识别标准

Object of Litigation and Criteria for Identifi cation in Public Interest Litigation

诉讼标的的识别标准问题由来已久,考察中外理论,源于德国却在中国有着全新理解的实体法律关系说、日本的领受权说及德国资深的司法要求说至今有着不可动摇之地位。分析新《民事诉讼法》第55条,公益权的社会权本质与实体法律关系说相合,机关或组织(主体)以损害社会公共利益的诉讼理由可以获得"法律地位"与诉讼标的领受权说相合,"有权提起诉讼"与司法要求说相合。

Criteria for identification of litigation object have been long standing. Although the issue of litigation object originates from Germany, it has been in an unshakable position in legal relationships of Chinese substantive laws that enjoy brand-new understanding, in Japanese right-to-receive idea and in requirements of German senior judges. In Article 55 of the new Civil Procedure Law, the nature of social rights of public interest right is consistent with relationships of substantive laws; institutions or organizations （subjects） can have ＂legal status＂ for initiating a legal action against damaging public interest, which agrees with the fight-to-receive idea in litigation object; and ＂having the right to initiate a legal action＂ is in line with judicial requirements.