检察公益诉讼诉前程序的性质及定位——以推动诉前程序与提起诉讼衔接为目标

The Nature and Position of the Pre-litigation Procedures for Procuratorial Public Interest Litigation--With the Goal of Promoting the Connection Between Pre-litigation Procedures and the Initiation of Litigation

公益诉讼实践中,检察机关一方面“开疆辟土”,不断地尝试着扩展其受案范围;另一方面应对着因诉前程序督促作用的有限性或案件自身特性带来的进入到提起诉讼程序的部分案件。诉前程序的性质及定位关涉公益诉讼的平稳推进与法律监督效果的充分实现,更关涉中国特色检察公益诉讼制度的建立及其有序推进。检察公益诉讼法作为一种独立诉讼形态的国家机关的关系法,诉前程序与提起诉讼程序的衔接本质就要处理好检察机关、审判机关和行政机关的关系。明确诉前程序的功能定位是解决诉前程序与提起诉讼程序衔接不畅的基础。然而现有的衔接程序理论层面拘泥于传统模式设计中各种因素的掣肘,实践层面受制于检察建议与诉讼请求错位的束缚等问题。因此,应强调敢于以“诉”的确认精准规范体现司法价值引领,诉前程序中纳入监督的案件必须符合诉的要求,也就是符合后面可能进入到法院为主导的诉前程序的要求。阐释诉前程序与提起诉讼衔接的法理基础,通过国家层面立法促进检察建议标准化、起诉条件具体化、沟通机制长效化等来保障二者的无缝衔接,是检察公益诉讼立法目的实现以及中国特色检察公益诉讼建构的关键所在。

In the practice of public interest litigation, on the one hand, the procuratorial organs “open up new territories”and constantly try to expand the scope of cases they accept.On the other hand, it is necessary to deal with some cases that inevitably enter the litigation procedure due to the limited role of pre-litigation procedure supervision or the characteristics of the case itself.The nature and positioning of pre-litigation procedures are related to the steady progress of public interest litigation and the full realization of the effect of legal supervision, and more importantly, to the establishment and orderly advancement of the procuratorial public interest litigation system with Chinese characteristics.The essence of the connection between the pre-litigation procedures and the initiation of litigation in the Procuratorial Public Interest Litigation Law, a relationship law of state organs in the form of independent litigation, is to properly handle the relationship between the procuratorial organs, the adjudication organs, and the administrative organs.Clarifying the functional position of the pre-litigation procedure is the basis for solving the poor connection between the pre-litigation procedure and the initiation of litigation procedures, However, the existing theory of bridging procedures is constrained by various factors in the design of traditional models, and the practical level is constrained by the constraints of the dislocation of procuratorial suggestions and litigation claims.Therefore, this paper emphasizes the courage to be guided by the accurate and standardized confirmation of “litigation” reflecting judicial value, and the cases included in the supervision in the pre-litigation procedure must meet the requirements of the lawsuit, that is, meet the requirements of the later pre-litigation procedure that may enter the court, and explain the legal basis of the connection between the pre-litigation procedure and the litigation.The key to the realization of the legislative purpose of procuratorial public interest litigation and the construction of procuratorial public interest litigation with Chinese characteristics lies in promoting the standardization of procuratorial suggestions, the concretization of prosecution conditions, and the long-term effectiveness of communication mechanisms through national-level legislation to ensure the seamless connection between the two.