民事抗诉的终结与民事公诉的再生——试论我国民事诉讼检察制度的重构

The Prosecuting Department's Going Forwards and Backwards in the Civil Litigation

民事诉讼检察制度是现代民事诉讼中的一项重要制度,各国立法均规定了检察机关在民事诉讼中的起诉权和参与诉讼权,而我国却只规定了审判监督的抗诉权,这不仅与各国立法潮流相逆,同时因缺乏理论基础的有力支撑,给司法实践带来了诸多的矛盾。基于对检察权性质和功能的科学定位,我国应当取消抗诉制度,重新激活民事公诉制度,实现民事诉讼检察制度的重构。

The civil prosecuting system is very important in the civil litigation . The legislation of all countries almost has entitled the prosecuting departments to conduct civil proceedings and attend the civil action. But in China the prosecuting departments just have the power of trial supervision, which is contrary to the tendency and has no firm foundation of theory.The civil protest system has made many troubles in the judicature. Based on the nature and function of the prosecuting power ,the civil protest system should be put to an end and the civil prosecution system , the civil prosecution system renewed to reconstruct the Chinese civil prosecution system .