检察机关提起民事公益诉讼之制度空间再探——兼与行政公益诉讼范围比较

A Further Analysis on the Institutional Space of Civil Public Interest Litigation Initiated by the Procuratorate——Comparing with the Scope of Administrative Public Interest Litigation

检察民事公益诉讼并非唯一的公益维护渠道,检察机关是否提起民事公益诉讼,应受民事、行政公益诉讼之顺位关系等因素的制约。当个案同时属于民事、行政公益诉讼的受案范围时,与检察民事公益诉讼相比,由行政机关在收到检察建议后履行监管职责可以更高效、便捷地维护公益。当行政机关履行监管职责到位而生态环境却未被修复时,因客观法秩序已得到维护,故行政公益诉讼缺乏启动条件。此时的生态环境未被修复乃受客观条件所限,启动检察民事公益诉讼的实际意义甚微。行政权原则上应处于维护公共利益的第一线,仅当立法尚未对某个领域配置负有监管职责的行政机关或该机关未被授予有效监管权力时,才例外存在检察民事公益诉讼的制度空间。上述领域随立法之调整而变动,在现阶段主要包括认定国有资产转让行为无效、宣告婚姻无效、撤销监护未成年人的监护人资格这三类案件。

Civil public interest litigation initiated by the procuratorate is not the only way to protect public interest.Whether the procuratorate initiates civil public interest litigation should be subject to issues such as the sequence of civil public interest litigation and administrative public interest litigation.When the case can be proceeded both by way of civil public interest litigation and administrative public interest litigation,compared with the civil public interest litigation initiated by the procuratorate,it is more efficient and convenient for the administrative agencies to perform its supervisory duties after receiving the suggestion from the procuratorate to maintain the public interest.When the administrative organs have performed their supervisory duties but the ecological environment has not been repaired,because the objective legal order has been maintained,the administrative public interest litigation lacks the conditions for initiation.At this time,the ecological environment has not been repaired because it is limited by objective conditions,the practical significance of initiating a civil public interest litigation by the procuratorate is very limited.In principle,administrative power should be at the forefront of safeguarding public interests.Only when the legislation has not allocated an administrative agency with sufficient supervisory powers in a certain field,there are exceptional institutional space for the procuratorate to initiate civil public interest litigation.Such exceptional areas will evolve with the development of legislation.At this stage,they mainly include cases of determining that the transfer of state-owned assets is invalid,declaring the marriage invalid,and revoking the guardianship against minors.