Research On The Issue Of Criminal Incidental Civil Public Interest Litigation Initiated By Procuratorial Organs

On March 2,2018,the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the "Judicial Interpretation of Procuratorial Organs for Public Interest Litigation",which for the first time stipulated that "when the people’s procuratorates initiate criminal prosecutions for crimes that damage the ecological environment and resource protection,infringe upon the legitimate rights and interests of numerous consumers in the field of food and drug safety and other crimes that harm social and public interests,they may file an incidental civil public interest lawsuit together with the people’s court.The procuratorates file civil public interest litigation incidental to the criminal case,which is not only the implementation of the19 th national congress of the communist party of China(CPC)with principles of putting people first,but also a necessity for the functions of procuratorial organs to transform.The procuratorial organs must transform their functions.Taking the opportunity of the "two high" and “judicial interpretation of procuratorial public interest litigation”,multiple local procuratorial organs have already handled a number of criminal incidental civil public interest litigation cases.However,restricted by the lag of theoretical research and the effectiveness of legislature hierarchy,the procuratorial organs are faced with many difficulties in bringing incidental civil public interest litigation.Through the empirical analysis of more than 180 criminal litigation documents attached to civil public interest litigation cases,it is found that the procuratorial organs have unclear roles in dealing with criminal incidental civil public interest litigation cases,there is a dispute over whether there is a need to fulfill the announcement obligation,the responsibility mode and the compensation objects need to be clarified and the legal basis needs to be unified as well.Criminal incidental civil public interest litigation is an organic combination of criminal incidental civil litigation and civil public interest litigation.The procuratorial organ should be the plaintiff of the civil public interest lawsuit incidental to the criminal in the procedure of first instance,which not only conforms to the modesty ofprocuratorial power,but also is the proper meaning of the litigation theory,and also solves the procuratorial organ’s litigation status in the appellant of second instance and the retrial protest person.Due to the strong professionalism of the procuratorial organs themselves and the limitation of the period of criminal proceedings,the procuratorial organs do not need to fulfill the obligation of public announcement in filing incidental civil public interest litigation.It is in line with the principle of litigation to make clear the way of "making amends and apologies" and stipulate that the organ suffering losses should be the object of compensation,which is beneficial for the procuratorial organ to play its function of post-supervision and realize the organic unification of the legal effect,social effect and ecological restoration effect of the case.As a special form of incidental civil litigation,incidental civil public interest litigation in criminal cases should be based on incidental civil litigation.Therefore,article 101 of the criminal procedure law and relevant judicial interpretations shall serve as the legal basis for the people’s procuratorates and people’s courts to handle cases of incidental civil public interest litigation in criminal cases.