检察机关提起行政附带民事公益诉讼诸问题——从“检例第29号”谈起

Relevant Issues on Procuratorate Initiating Administrative Public Interest Litigation with Attached Civil Public Interest Litigation

2017年,最高人民检察院围绕"检察机关提起公益诉讼"的主题发布了一批指导性案例,其中一起检察机关提起的行政附带民事公益诉讼案件引起广泛关注。行政附带民事公益诉讼是一种不典型的附带型诉讼,现阶段检察机关是提起该类型诉讼的唯一适格主体。检察机关提起行政附带民事公益诉讼的案件范围应同时满足《行政诉讼法》第61条第1款规定的行政诉讼受案范围和《行政诉讼法》第25条第4款、《民事诉讼法》第55条第2款规定的行政和民事公益诉讼受案范围,且应视案件严重程度判断是否介入。检察机关启动行政附带民事公益诉讼要同时履行行政公益诉讼诉前程序和民事公益诉讼诉前程序,从运行效果来看,现行规范中的诉前程序规则还有待于进一步完善。

In 2017,the Supreme People’s Procuratorate issued a number of guiding cases around the theme of"procuratorate initiating public interest litigation",among which a case that procuratorate initiates an administrative pubic interest lawsuit with an attached civil public interest lawsuit has attracted widespread attention.This kind of lawsuit is atypical and collateral,and the procuratorate is currently the only eligible subject to initiate this type of litigation.The scope of cases in which the procuratorate initiates an administrative public interest lawsuit with attached civil public interest lawsuit shall meet the scope of administrative litigation prescribed in Clause 1,Article 61 of the Administrative Litigation Law of the PRC,along with the scope of administrative and civil public interest litigations stipulated in Clause 4,Article 25 of the Administrative Litigation Law of the PRC as well as the second paragraph of Article 55 of the Civil Procedure Law of the PRC.Meantime,whether the procuratorate should intervene relies on the judgement of the severity of the case.The procuratorate,while initiating the administrative public interest lawsuit with attached civil public interest lawsuit,must perform both a prelitigation procedure of administrative public interest litigation and that of civil public interest litigation.In terms of operational effects,the pre-litigation procedural rules in the current norms need to be further improved.