论检察机关提起民事公益诉讼的制度空间

On the Space for System of Procuratorial Organs Initiating Civil Public Interest Litigation

行政机关是公共利益的首要维护者。当公共利益遭受侵害时,应仰赖行政机关履行职责,同时辅以对违法或怠于履行职责的行政机关提起行政公益诉讼的制度设计。检察机关提起民事公益诉讼意味着其冲到负监管职责之行政机关的前方,将面临缺乏权利保护必要性、放任行政机关不作为等负面评价。我国现行法规定的检察机关提起民事公益诉讼制度面临检察机关不宜在此类诉讼中起诉污染者与造假者、不应代替行政机关履行职责、不该仅以维护"社会公共利益"作为民事起诉事由等质疑。检察机关作为国家的法律监督机关,对国家利益和社会公共利益的维护应当扮演最后一道防线的"兜底作用",在现行法无明文规定行政机关行使职权的领域,存在检察机关提起民事公益诉讼的制度空间。

The administrative organ is the primary defender of the public interest. When the public interest is violated, it should be the administrative organ to perform its duties, and file a public interest lawsuit against the administrative organ that violates the law. The procuratorial organs initiating civil public interest litigation means that it has become an administrative organ with supervisory duties, and will face negative evaluations such as lacking the necessity to protect rights and allowing the inaction of administrative organs. The procuratorial organs initiating civil public interest litigation regulated by China＇s current law have raised many questions, including that the procuratorial organs should not prosecute polluters and counterfeiters in such litigation, should not replace the administrative organs to perform their duties, and should not only take maintaining ＂ social public interest＂ as the litigation reason. As the state＇s legal su- pervision organ, the procuratorial organ should be the last line of defense to safeguard national interests and social public interests. In the field where the current law does not expressly stipulate that the administrative organs exercise their functions and powers, there is institutional space for the procuratorial organs to initiate civil public interest litigation.