论我国家事诉讼立法中检察权的引入

Introduction of Procuratorial Power into the Legislation of Family Litigation in China

在家事诉讼立法中,要按照凸显宪法权威与宪法监督权的一贯逻辑,借鉴域外检察机关参与家事诉讼的经验,借助检察机关的传统既有优势和当下良好的发展态势,发挥检察机关维护公益的职业专长。将检察权引入家事诉讼立法,要确立检察机关对家事诉讼依法进行监督的原则,检察机关可以通过全面、依法、谦抑、诚信地行使监督权,侧重对弱势当事人的权利保障是否得到落实展开监督。家事诉讼立法,要赋予检察机关主当事人的诉讼地位,根据特定案件的需要,检察官可以作为原告提起诉讼,也可以作为被告由法院通知参加诉讼;家事诉讼立法,也要赋予检察机关从当事人的诉讼地位,基于实际需要,检察官可以参加他人提起的诉讼,到法庭发表意见。基于家事诉讼所需专业人员匮乏的现实情况,检察权还可以适度延伸,由检察人员代行家事诉讼程序辅助人、家事调查员的职能。

In the legislation of family litigation,we should act in accordance with the consistency of highlighting the authority and the supervision right of the Constitution,learn from the experience of overseas procuratorial organs participating in family litigation,take advantage of the traditional advantages and current good development trends of procuratorial organs,and bring into play the professional expertise of the procuratorial organs to protect public interests.To introduce procuratorial power into family litigation legislation,it is necessary to establish the principle of procuratorial organs supervising family litigation in accordance with the law.Procuratorial organs can exercise supervision power comprehensively,legally,modestly,and honestly,focusing on whether the protection of rights of vulnerable parties has been implemented.In the legislation of family litigation,the procuratorial organ should be endowed with the litigation status of the principal party,to lodge a complaint as a plaintiff or to be notified by the court to participate in the litigation as a defender according to the requirement of special cases.Additionally,in the legislation of family litigation,the procuratorial organs should be endowed with the litigation status of the secondary party,on the basis of real demand,to participate in the litigation lodged by others and express their opinions in court.Based on the reality of the lack of professionals required for family litigation,procuratorial power can be appropriately extended,with procurators acting as assistants and investigators in family litigation.