检察公益诉讼“行政化”之反思

Reflection on the Administrativeisation of theProcuratorial Public Interest Litigation

迈入高质量发展阶段的检察公益诉讼制度须立足于程序运作实际检讨既有的逻辑困境。以环境检察公益诉讼为样本,检察公益诉讼在权力行为属性上呈现出偏离检察权的“行政化”趋势,具体表现为检察机关与行政机关协同执法的“直接行政化”及诉前检察建议异变为行政指令的“间接行政化”。检察公益诉讼运作的“行政化”根因于检察机关自身的行政式工作理念与办案逻辑,解脱之道亦在于此。检察机关应通过调整公益诉讼检察履职方式,借助支持起诉强化公众参与。同时,为弥补社会团体在公益代表性方面较之于检方主导模式的不足,需要明确法官以公共利益监护者的身份主导环境公益诉讼,与之相应,须引入非讼法理以支撑法官主导的程序构造。

The procuratorial public interest litigation system in China has entered a stage of high-quality development,and it is necessary to review the existing logical dilemmas based on the actual operation of the procedure.In the case of environmental prosecution public interest lawsuits,there is an administrative tendency for procuratorial public interest litigation to deviate from the attribution of the procuratorial power.This trend towards administrativeisation is concretely manifested in joint law enforcement actions between the prosecution and administrative authorities,which we may refer to as direct administrativeisation.Another manifestation is the transformation of pre-litigation procuratorial proposals into administrative instructions,which can be described as indirect administrativeisation.The root cause of the administrativeisation in the operation of prosecutorial public interest litigation lies in the administrative working philosophy and logic of the procuratorate itself,and the solution to this problem must also be based on this cause.The procuratorial authorities should adapt the way of performance of their procuratorial duty of public interest litigation to strengthen public participation through supporting the initiation of litigation.In order to compensate for the lack of public interest representation by social association,it is necessary to clarify the role of judges as guardians of the public interest in judicial protection of the public interest and to introduce non-contentious jurisprudence to support it.