论检察院提起民事公益诉讼的公益与私益竞合问题

ON LITIGATION CONCURRENCE BETWEEN PUBLIC INTEREST AND PRIVATE INTEREST IN THE CIVIL PUBLIC INTEREST LITIGATION FILED BY THE PROCURATORATE

人民检察院提起公益诉讼的试行工作越来越深入,在此过程中出现的公益诉讼和私益诉讼的竞合问题,也越来越凸显。公益的内涵和外延,既决定了公益和私益交融的深度,也在某种程度上界定了人民检察院公益诉讼权力的行使。对公益诉讼和私益诉讼竞合时,两种诉讼是否可以合并,以及如何合并,目前学界仍存在争议。通过对审理顺位的分析,进一步探究公益诉讼既判力的扩张,公益诉讼中的证据能否在私益诉讼中运用,公益诉讼中证明责任和私益诉讼中证明责任之间的关系。以此为基础研究人民检察院提起公益诉讼时公益诉讼和私益诉讼竞合的情形。结合我国法律对另赋实体权和诉讼担当模式进行分析认为,诉讼担当模式更符合当下我国的法律规定。

More and more public interest litigations have been brought to trial by the people’s procuratorate. Issues of litigation concurrence have become increasingly obvious, such as the concurrence between public interest and private interest, the integration of both interests, etc. The connotation and extension of public interests are the key to determine the extent of integration between public interest and private interest, and also to define the exercise of people’s procuratorial power. Based on the trial sequence, the res judicata of public interest litigation is further examined on whether the evidences in public interest litigation can be applied in the private interest litigation, and on the relationship between the burden of proof in the public interest litigation and that in the private interest litigation. Then the litigation concurrence between public interest litigation and private interest litigation can be studied in the case of public interest litigation filed by the people’s procuratorate. According to the legal analysis and the litigation pattern of our country, the pattern of litigation take-on is more suitable for the current legal provisions.