非讼化构造与治理性理念:公益诉讼的中国模式

Non-Litigation Structure and Governance Concept:The Chinese Model of Public Interest Litigation

2012年《民事诉讼法》增设的民事公益诉讼制度,主要旨在发挥社会组织通过诉讼保护公共利益的作用。囿于社会组织体量资质、起诉意愿、诉讼能力的局限,立法预期并未充分实现。检察公益诉讼制度的建立以及单行法中公益诉讼条款的增设,扩展了公益诉讼的领域范围,丰富了公益保护的实现形式,改变了民行公益诉讼的关系,重塑了公益诉讼的制度内容和运行态势。我国公益诉讼制度兼采执法逻辑和监督逻辑,并且检察院和法院在履职过程中都实行能动主义。执法逻辑决定我国公益诉讼在程序构造上呈现非讼化现象,监督逻辑决定我国公益诉讼在运行目标上呈现治理性理念。司法能动下的非讼化构造与治理性理念共同塑造了公益诉讼的中国模式。

The civil public interest litigation system,which was added to the Civil Procedure Law in 2012,is mainly aimed at giving full play to the role of social organizations in protecting public interests through litigation.Due to limitations in the size,qualification,willingness to sue,and litigation ability of social organizations,the legislative expectations have not been fully realized.The establishment of the procuratorial public interest litigation system and the addition of public interest litigation clauses in separate laws have expanded the scope of public interest litigation,enriched the implementation forms of public interest protection,changed the relationship between civil and administrative public interest litigation,and reshaped the institutional content and operation situation.China’s public interest litigation system adopts both law enforcement logic and supervision logic,and both procuratorates and courts practice activism in the process of performing their duties.The law enforcement logic determines that China’s public interest litigation is a non-litigation phenomenon in the procedural structure,and the supervision logic determines that China’s public interest litigation is a governance concept in terms of operational objectives.The non-litigation structure and the governance concept under judicial activism jointly shape the Chinese model of public interest litigation.