检察公益诉讼立法中重大关系的处理策略

Strategies for Dealing with Important Relationshipsin Procuratorial Public Interest Litigation Legislation

“检察公益诉讼法”宜被定位为《民事诉讼法》和《行政诉讼法》关于检察公益诉讼制度的特别程序法。单行法之检察公益诉讼条款与《民事诉讼法》第58条第2款之间构成特别条款与一般条款的关系。全部或部分放弃补充诉权论,检察民事公益诉讼“督促之诉”的功能定位将不再名副其实。检察机关选择民事公益诉讼,须以侵权主体明确和责任主体具有履行能力为必要条件。检察机关选择行政公益诉讼,须以行政监管措施未穷尽且依法具有可行性为必要条件。构建检察民事公益诉讼和行政公益诉讼的负面清单,有助于检察机关精准地选择诉讼类型。为实现惩罚性赔偿金的管理权、使用权和监督权分治,应当将赔偿金纳入财政部门设立的公益诉讼基金专户统一管理,由相关职能部门负责使用,检察机关对使用进行流程监督。

The Procuratorial Public Interest Litigation Law should be positioned as the special procedure law of the Civil Procedure Law and the Administrative Procedure Law regarding the procuratorial public interest litigation system.The prosecutorial public interest litigation provisions of the single line law and Article 58(2)of the Civil Procedure Law constitute a relationship between special provisions and general provisions.Abandoning the theory of supplementary litigation rights in whole or in part,the functional positioning of prosecutorial civil public interest litigation as a“supervisory lawsuit”will no longer be worthy of its name.The selection of civil public interest litigation by the procuratorial organs must be based on the necessary conditions of clear identification of the infringing party and the ability of the responsible party to perform.The selection of administrative public interest litigation by the procuratorial organs must be based on the necessary conditions that the administrative supervision measures have not been exhausted and are feasible according to law.Constructing a negative list of civil public interest litigation and administrative public interest litigation can help the procuratorial organs accurately select the type of litigation.In order to achieve the separation of management,use,and supervision rights of punitive damages,the damages should be included in the public interest litigation fund special account established by the finance department for unified management,and the relevant functional departments should be responsible for their use,while the procuratorial organs should supervise the process of use.