检察民事公益诉讼调查核实权制度的构建

The Construction of the System of Investigation and Verification Power in Procuratorial Civil Public Interest Litigation

目前,检察机关民事公益诉讼调查核实权缺乏系统的制度构建,导致了实务中调查取证难的问题。权属性质、行使范围和强制力问题构成了检察民事公益诉讼调查核实权制度构建的基本问题,成为理论上争议的焦点。而争议的根源在于对检察机关在民事公益诉讼中的地位问题尚不明确。在诉前阶段,检察机关为“督促起诉者”,调查核实权的行使带有权力属性,应侧重于核实证据,在行使范围上坚持必要性原则,可赋予调查核实权有限度的强制力。在提起诉讼阶段,检察机关为“民事公诉者”,调查核实权带有权利属性,侧重于调查证据,在行使范围上应坚持全面性原则,没有必要赋予强制力。为保证检察民事公益诉讼调查核实权行使,需要健全相关保障机制。

At present,the lack of systematic construction of procuratorial organs’civil public interest litigation to investigate nuclear power has led to the difficulty of investigation and evidence collection in practice.The nature of ownership,the scope of exercise and the coercive force constitute the basic issues of the construction of the system of investigation and verification power in procuratorial civil public interest litigation,which has become the focus of theoretical controversy.The root of the dispute lies in the unclear status of the procuratorial organ in the civil public interest litigation.In the pre-litigation stage,the procuratorial organ is the“person who urges the prosecution”.The exercise of the power of investigation and verification has the attribute of power.It should focus on the verification of evidence,adhere to the principle of necessity in the scope of exercise,and endow the power of investigation and verification with limited coercive force.In the stage of instituting a lawsuit,the procuratorial organ is the“civil prosecutor”,and the right of investigation and verification has the attribute of right,focusing on the investigation evidence.In the scope of exercise,it should adhere to the principle of comprehensiveness,and there is no need to give coercive force.In order to ensure the exercise of the procuratorial investigation and verification power in civil public interest litigation,we need to improve the relevant safeguard mechanism.