论检察机关提起民事公益诉讼之“公益”

On “Public Benefit” of Civil Public Interest Litigation by Prosecutors

检察机关提起民事公益诉讼中的公益,并不是中文语境下的"公益",更多的倾向于公共利益之理解。对集体利益、国家利益、政府利益做精确的理解是判定检察机关能否提起民事公益诉讼的基础。对侵犯集体利益的行为,在没有符合法律规定的公益性组织起诉时,检察机关可作为原告向法院提起民事公益诉讼。对侵犯国家利益的行为,如涉及到国有资产、海洋等领域,检察机关亦可提起民事公益诉讼。根据公益的分类,寻求不同的维护方式。对于可诉型公益,通过诉讼加以维护,对于一般性公益,则通过法官裁判时在适用法律与维护公益之间进行平衡。

The public interest of civil public interest litigation by prosecutors is not "public interest" in the Chinese context, but more inclined to the understanding of public interest, therefore. Making accurate understanding of collective interests, national interests and government interests is the basis for determining whether the prosecutors can take civil public interest litigation. For the acts that infringe on collective interests, the prosecutors may take a civil public interest lawsuit to the court as the plaintiff, if there is no public welfare organization in compliance with the law;for the acts that infringe on the interests of the state, such as involving state-owned assets and Marine areas, the prosecutors may also take civil public interest lawsuits. According to the classification of public welfare, prosecutors can seek different ways for protection: for the litigious public welfare, protection can be done through litigation;for the general public welfare, judges can make the balance between the application of law and the maintenance of public welfare.