公益诉讼检察调查核实权的阶段性运行规则建构

The Construction of Phased Operation Rules of the Procuratorial Investigation and Verification Power in Public Interest Litigation

根据检察机关介入公益诉讼案件的时间和程度不同,检察调查呈现出“立案前初查—诉前调查核实—诉中调查取证—诉后调查核实”的阶段性特性。依据《人民检察院组织法》,公益诉讼检察调查核实权的运行应限定在公益诉讼案件立案后至检察机关提出检察建议或发布公告之前这一阶段。实践中,公益诉讼检察调查核实权的运行逾越阶段性边界,引发调查核实内容超越职权范围、调查核实程序偏离法定秩序和调查核实成本违背效益原则等问题,难以达到甚至背离公益诉讼检察监督的目标。为保障公益诉讼检察调查核实权运行不逾越阶段性边界,建议明确检察调查核实权的启动程序,合理设定调查核实权运行目标;明确检察调查核实权的运行阶段,区别诉前阶段调查核实和诉讼阶段调查取证;规范检察调查核实权的实现手段,明确调查核实材料的诉讼证据资格。

According to different involvement time and degrees of procuratorial organs in public interest litigation cases, procuratorial investigation shows phrased characteristics of “preliminary investigation before filing—pre-litigation investigaiton and verification—while-litigation evidence collection—post-litigation investigaiton and verification”. In accordance with the Organic Law of the People’s Procuratorates, the operation of the procuratorial investigation and verification power in public interest litigation should be limited to the stage from case filing to the proposition of suggestions or the issue of announcements by the procuratorial organ. In practice, the cross-phase operation of the procuratorial investigation and verification power in public interest litigation leads to such problems as the excessive content of investigation and verification beyond the scope of authority, the deviative procedure of investigation and verification off legal order, and the high cost of investigation and verification against the efficiency principle making it difficult to achieve—or even deviate from—the goal of procuratorial supervision of public interest litigation. In order to keep the operation of procuratorial investigation and verification power in public interest litigation within the stage boundary, it is suggested to clarify the starting procedure of procuratorial investigation and verification power and reasonably set the operation goal of the investigation and verification power;to clarify the operation stage of procuratorial investigation and verification power, and to distinguish between pre-litigation investigaiton and verification and while-litigation investigation and evidence collection;to standardize implementation approaches of procuratorial investigation and verification power, and to clarify the qualification of litigation evidence for investigation and verification materials.