On The Position And Role Design In Public Welfare Welfare Lawsuit Of Procecution Legislation

Since1990s, along with the old system convert into social transition, the public interests and individual interest fierce collision inevitable. The social public gradually realize that the social welfare have effects and constraints force to the private rights existence, to safeguard public welfare but also to the maximum extent possible to achieve the protection of private interest, the maintenance of social welfare has become one of the issues of public concern. The establish of public interest litigation system has become one of the necessary elements in China's Civil legal system. Public interest litigation system to safeguard the social and public interests as its fundamental to make up the deficiencies and defects in traditional private interest litigation rights. With a numerous public interest litigation issues, the absence of the main body of China's public interest litigation has led to ineffectiveness judicial relief of the public interest. Therefore, starting from establish the main body of public interest litigation, expand the main scope of legislative prosecution, relieve these restrictions on the subject of legislation, so that the just claim owner much more widely, which in order to achieve the balance between social public interests and individual interests. Along with the transforming from the individual to social of the basic principles of civil law, in the field of private law, state's intervention in civil activities has been increasing. In Constructing a public interest litigation system in China should also establish the Procuratorial Organs' main position, which is base on reference experiences of western countries, also from the procuratorial organ's special function. According to China's political power structure, the People's Procuratorate and the People's courts, are an integral part of the national judiciary, whose main duty is to monitor correct ruling, the verdict in trial activity and correct violations. From the prosecution purpose, the Procuratorial Organs setup public interest litigation through prosecution to achieve their legal supervision role. From the practice of Procuratorial Organs' legal supervision to the prosecution's general supervision, Procuratorial Organs is the best choice of China's public interest litigation to prosecute. From the power and Property rights, the statutory duties of state organs is more binding and enforceable, as the spokesman for better to achieve the basic national authority. People's Procuratorate, as the national interests and representatives of public interests, and also as the country's legal supervisory authority, while under the existing law did not define their dominant position to setup public interest litigation . As the State organs, the People's Procuratorate Organs setup civil and administrative public interest litigation, is like an intervention in the field of private law, is a bound to break the balance between the subject of proceedings, its legal status should be consistent with the criminal proceedings. As a "State Prosecutors" to setup public interest litigation, with laws to protect the state and public interests of society, to realize the legal remedies of national, social and public interests, which is very necessary in a transition period from the current society structure to the future, the location of People's Procuratorate, "State Prosecutor" is in line with our legal tradition. In the Judicial practice, it is necessary to realize the legitimate rights and interests of the State or the public's effectively protect, but also to prevent over-application of the prosecution's own "State Prosecutor" right to interfere the equal and effective proceedings, therefore, in establishing Procuratorate Organs as a public interest litigation prosecution should correctly handle the state power and the public interest, prosecutors and the procedural rights to supervise the relationship between the maximum extent possible to play its proper functions. Procuratorial Organs involved the scope of public interest litigation should be combined with specific national conditions of China's judicial status and requirements, the scope should not be too broad, adhere to the limited public intervention in a timely manner to facilitate the principles of science and the allocation of prosecutorial power. In the public interest litigation process, although the prosecution as a legal supervisory bodies, but the country is not a direct public management group, social welfare is being compromised, against how such information will not be impaired cases with the private interest as reflected to the prosecution. Therefore, to establish a smooth flow of information channels for the content of public interest litigation pre-trial proceedings in the prosecution is an important premise to complete the purpose of safeguarding social welfare. Meanwhile, in order to better protect the public interest, shall give for the Procuratorial Organs rights to ruling those libelant, informer, and an interested person etc before prosecution to the higher level. Due to the special nature of public interest litigation, the Procuratorial Organs prosecution rights must be specific procedural safeguards, that is, as long as public interest litigation for the purpose of prosecution proceedings, the court after a procedural review must meet the requirements for admissibility. On the one hand to strictly control the prosecution of public interest litigation conditions, but we also need to establish public interest litigation financial support system in order to safeguard the legal proceedings. This thesis by studying the major Western countries and the situation of our Procuratorial Organs involved in public interest litigation, based on reference successful expe riences of foreign countries and our own experience in recent years, analysis the necessity and feasibility of Procuratorial Organs involved in public interest litigation, and finally the People's Procuratorate will be defined as "State Prosecutor" to confirmed the position and role of the Procuratorial Organs.