检察消费民事公益诉讼的实践考察与理论反思——基于贵州省(2017-2021)司法实践的分析

Empirical Investigation and Theoretical Reflection on Consumption Civil Public Interest Litigation Initiated by the Procuratorate——Based on the Analysis of Judicial Practice in Guizhou Province from 2017 to 2021

当前,救济路径偏向化、案件类型限定化、判决理由粗浅化、审判组织多样化,是检察消费民事公益诉讼存在的主要问题。救济路径偏向化源于对相关规范依据的选择适用;案件类型限定化源于检察公益诉讼力量薄弱及案件拓展机制单一;判决理由粗浅化源于法官法律思维能力的不足;审判组织多样化源于“七人合议庭”适用规则不明、法院忽视公众参与。为有效推进检察消费民事公益诉讼制度的创新发展,应将刑事附带民事公益诉讼的法律属性界定为民事公益诉讼,并将《民诉法》作为刑事附带民事公益诉讼的首位法律规范依据,在肯定消费民事公益诉讼与刑事附带消费民事公益诉讼二元化救济体系并立的同时,强调消费民事公益诉讼的优先适用性;重视检察公益诉讼队伍建设、健全案件信息沟通与协调机制、完善办案激励机制,以拓展案源、实现案件类型多样化;加强审判团队建设,提高法官的法律思维能力,提升判决理由说明的精细化水平;明确“七人合议庭”的强制适用性及违反的法律后果,借助参审人民陪审员的专技优势以夯实判决的民意基础,实现“保障公众参与”之立法意图并扩大判决书的社会影响力。

At present, the biased relief paths, limited case types, shallow judgment reasons, and diversified trial organizations are the main problems existing in consumption civil public interest litigation initiated by the procuratorate.The biased relief path stems from the selection and application of relevant normative basis;the limitation of case types stems from the inadequacy of procuratorial public interest litigation which leads to single case expansion mechanism;the shallowness of judgment reasons stems from the insufficient legal thinking ability of judges;and the diversification of trial organizations stems from the unclear rules of seven-member collegiate panel and the ignorance of the court for public participation.In order to effectively promote the innovative development of the procuratorial consumption civil public interest litigation system, we should define legal nature of the civil public interest litigation attached to a criminal case as a civil public interest litigation, and take the “Civil Procedure Law” as the first legal normative basis for the civil public interest litigation attached to a criminal case.We should emphasize the priority applicability of consumption civil public interest litigation while admitting the co-existing relief system of consumption civil public interest litigation and the civil public interest litigation attached to a criminal case;attach great importance to the construction of procuratorial public interest litigation teams, improve the case information communication and coordination mechanism, improve the case handling incentive mechanism, so as to expand the source of cases and realize the diversification of case types.We should strengthen the construction of the trial team by improving the legal thinking ability of judges, doing better in refining the explanation of the reasons for the judgment.We should clarify the mandatory applicability of the “seven-member collegial panel” and the legal consequences of tis violation, take the advantages of the people’s jurors’ professional skills in the trial to consolidate the public opinion foundation of the judgment, thus to realize the legislative intention of “securing public participation” and expand the social influence of the judgment.