公益诉讼检察调查权的权属特征研究

On the Nature and Characteristics of the Procuratorate's Power of Investigation in Public Interest Litigation

检察机关提起公益诉讼,是对侵害国家和公共利益的违法行为进行法律监督的重要方式,检察机关行使调查权是实现这种法律监督职权的重要手段。作为公益诉讼起诉人,检察机关行使的调查权归根溯源属于当事人证明权内含的证据收集权,是推动实质且充分的诉讼活动从而实现公益诉权的保障。检察机关基于监督目的而补位提起公益诉讼是维护公益的后置救济途径,应当赋予检察机关不同于一般当事人的调查权行使方式和保障措施。

Public interest litigation by the procuratorate is a vital means of legal supervision on violations against national and public interest, for which the procuratorate’s power of investigation is a necessity. The power of investigation exercised by the procuratorate can be traced to the plaintiffs’ right to collect evidence which is embedded in the right of proof. Such power is a safeguard for a full and substantial promotion of the litigation and therefore for the right to initiate public interest litigation. For the purpose of supervision, the procuratorate can conduct public interest litigation as a relief to public interest protection. Therefore, the procuratorate should be granted a way to perform and safeguardthe power of investigation different from the way of typical parties.