Research On The Mediation System Of Criminal Attached Civil Public Interest Litigation Initiated By The Procuratorate

Since the establishment of the Criminal collateral civil public interest litigation system initiated by the procuratorate in 2018,Civil public interest litigation attached to criminal cases has become the main mode of civil public interest litigation brought by procuratorates in China.Mediation,as an effective way to resolve disputes,has gradually infiltrated from the traditional civil field into the field of civil public interest litigation attached to criminal cases filed by procuratorates.However,different from the performance in the field of practice,there is no regulation on the mediation system of civil public interest litigation incidental to criminal cases filed by procuratorates in China’s legislation,and the theoretical research on this aspect also lags behind obviously.As a major feature of the Chinese legal system,the mediation system is applicable to the civil public interest litigation incidental to criminal proceedings brought by the procuratorate,which can not only improve the judicial efficiency,but also has a positive significance in promoting the realization of the dual functions of the protection of the legal interest of criminal law and the protection of social public interest.However,it must be noted that the system of criminal incidental civil public interest litigation initiated by the procuratorate contains various procedures and factors such as civil,public interest and criminal,etc.Compared with civil public interest litigation and criminal incidental civil litigation mode,it has obvious differences in litigation structure and function as well as litigant status and other aspects.Whether or not the mediation system can be applied in this new field and how it can be applied there is no ready-made model that can be directly copied.Based on the characteristics of the mediation system itself and the particularity of its application field,this paper makes a special study on the mediation system of civil public interest litigation incidental to criminal cases filed by procuratorates.This paper starts from five aspects: the absence of norms and theoretical disputes in the application of the system,the judicial dilemma of the application of the system,the analysis of the causes of the judicial dilemma,the legitimacy of the application of the system and the design of the mediation system.The first part discusses the controversial issues in the application of the current system from the perspective of legal norms and theoretical research.As for whether mediation is applicable to civil public interest litigation incidental to criminal cases filed by procuratorates,the current laws and judicial interpretations do not clearly stipulate,But there are different answers in the civil action attached to criminal,civil public interest action and the civil public interest action initiated by the procuratorate.The conflicts of relevant laws and regulations and the disputes in theory make the judicial organs face a difficult choice on the application of mediation.The second part,turning to the judicial practice,pay close attention to the procuratorial criminal incidental civil public interest litigation mediation in the practical operation,Through case analysis throughout the year of 2019,a comprehensive summary of the current application of the mediation system and the judicial dilemma it faces is made from the aspects of the application rate of mediation,the applicable charges of mediation,the way of assuming responsibility,the impact of mediation results on sentencing,the application stage of mediation,and the control of mediation procedures.The third part,in view of the judicial dilemma in the current situation of operation,analyzes the reasons from several aspects,such as the influence of the function positioning of the procuratorial organ on mediation,the different understanding caused by the absence of legislation,the influence of the defendant’s ability to perform on the choice of mediation,and the concern of judicial credibility caused by the intersection of civil punishment.The fourth part re-examines the operation space and application value of the mediation system of civil public interest litigation attached to criminal cases filed by procuratorates from three aspects of theory,practice and results,and clarifies the legitimacy of the application of the system.The fifth part,based on the principle of the restriction of the prosecutorial organ’s right of disposition,starts with the application of mediation in different litigation requests,the application of mediation before trial,the control of special procedures,the relationship between the result of mediation and sentencing and so on,and carries on the system design to the application of mediation in the criminal civil public interest litigation filed by the procuratorate.