检察机关提起刑事附带民事公益诉讼制度的检视与完善

Inspection and Perfection of the System of Civil Public Interest Litigation Attached to Criminal Law Initiated by Procuratorial Organs

刑事附带民事公益诉讼制度是试点制度化的结果,但这种强制嵌入刑事诉讼程序的做法存在合法性问题。目前依托《民事诉讼法》、相关司法解释等规范依据的制度表现出全部的民事诉讼特征。虽然各地检察机关也在不断探索新模式,但基于犯罪行为的关联没能很好展现。除此,该制度从主体、程序和规则三个维度检视均存在诸多问题。因此,该制度需要不断探索优化路径来完善,大致包括:立法规定检察机关的主体资格及其受案范围;取消诉前公告程序,明晰调解程序;强化分工配合,完善执行监督体制来突破主体障碍;明确举证责任,完善取证制度及其保障措施;建立基金管理规则等。

The system of civil public interest litigation attached to criminal law is the result of pilot institutionalization, but there is a problem of legality in this kind of compulsory embedding of criminal procedure. At present, relying on the Civil Procedure Law, the relevant judicial interpretation and other normative basis of the system shows all the characteristics of civil litigation. Although local procuratorial organs are constantly exploring new models, the connection based on criminal behavior has not been well demonstrated. In addition, there are many problems in the examination of the system from the three dimensions of subject, procedure and rules. Therefore, the system needs to constantly explore the optimization path to improve, including: Legislation stipulates the subject qualification of procuratorial organs and the scope of accepting cases;Cancel the pre-litigation announcement procedure and clarify the mediation procedure;Strengthen the division of labor and coordination, improve the implementation supervision system to break through the main obstacles;Clear the burden of proof, improve the evidence collection system and its safeguard measures;Establish fund management rules.