我国证券公益诉讼制度建构的理论证成

Theoretical Certification of the Construction of Securities Public Interest Litigation System in China

法学界一般把公益诉讼看作是民事公益诉讼,其实,公益诉讼是不同于群体性民事诉讼(如代表人诉讼)的一种新型诉讼形式,其适用于损害众多人利益的违法行为引起的纠纷,其目的在于维护公共利益。因而,赋予主体原告资格,并不一定需要其与诉讼所纷争的利益具有直接利益关系。证券纠纷的特点,以及我国社会组织发展的现状和法律制度环境,决定了在我国未来拟建构的证券公益诉讼制度中,原告资格应依法得到证券投资者保护组织的许可为宜。具体的诉讼制度可采取团体公益诉讼与示范公益诉讼相结合的二元诉讼机制。

Legal academia generally regards public interest litigation as civil public interest litigation. In fact, public interest litigation is a new kind of litigation which is different from mass civil litigation （like representative lawsuit）. And it is applicable to disputes resulting from illegal behavior harming mass interests and aims at the protection of public interests. Therefore, the entitlement of subjects to plaintiff qualification does not necessarily need their direct relation with the interests relating to lawsuits. The features of securities disputes as well as present status of social organization development and legal institutional environment in China, determine that plaintiff qualification should be legally permitted by securities investor protection organizations in securities public interest litigation system that will be estab- lished in the future. Concrete lawsuit system can adopt a dual litigation system combining group and demonstration public interest litigations.