Papers Category:Legal Papers
- Legal Theory Papers
Post Time:2014-2-23 22:23:00
Abstract public interest litigation is a judicial remedies to punish welfare violations, to protect the public interest.
As an inevitable requirement of modern rule of law is to create a harmonious society, and public interest litigation and is closely related to the harmonious society, based on the characteristics of the public interest litigation, public interest litigation must be through group action to achieve social harmony. Groups, the proliferation of litigation dispute resolution, public policy formation of functional and procedural safeguards functions fit the requirements of harmonious society.
Paper Keywords Public Interest Litigation Analysis to establish the concept of
A public interest litigation basic overview of
(A) the concept of public interest litigation
Public Interest Litigation and the building of a harmonious society in China is closely related to the construction of a modern society ruled by law, its main contents of two public administrative proceedings and civil public interest litigation. Thus divided is mainly based on two, one of which is due to the type of object being prosecuted or divided due to the type of procedure applicable law; another one is divided due to the type of body instituted proceedings a and can be broken down, mainly divided into two ways, one is as the main public interest litigation filed by individuals or other groups, and the other as the main public interest litigation filed by the prosecution, the former referred to the general public welfare litigation, which is known as the Public Interest Litigation or administrative public interest litigation.
(B) of the historical development of the public interest litigation system
A civil public interest litigation in our country the earliest can be traced back to the Qing Dynasty, promulgated the 'in in 1910 the the preparation of of the Court Law' stipulates that the the at all levels Prosecutor's has the right to provisions of in accordance with the Civil Procedure Law of and other Act, As a manufacturer of of civil litigation the parties or the public welfare representative to conduct litigation a. However, until the Qing government was overthrown, the law could not be implemented. After the founding of New China, issued by the Supreme People's Department of the Central People's Government pilot organization Ordinance, the provisions in the terms of reference of the Supreme People's Procuratorate: National Social and interests of working people in civil cases and all administrative proceedings are entitled to exercise the same powers on behalf of countries to participate. The 1954 law on the prosecution the right to sue in civil proceedings and reference appeal and the procedures for the exercise of these rights provisions of the Constitution and the Organic Law of the People's Procuratorate. After a period of time within the procuratorial organs was canceled after the Cultural Revolution rebuilt Procuratorate, but the civil litigation rights of action is not restored. In accordance with the current provisions of Procedural Law, also only provisions of the prosecution right of supervision over civil proceedings, and did not involve the right to sue, the right to appeal.
Second, China has established the need for Civil Suit System
(A) the basic status of the Public Interest Litigation in China
With the continuous development of China's market economy, environmental pollution, monopoly violations of consumer rights, labor law violations and violations of the rights and interests of migrant workers offenses and serious damage to the public interest of society, but because of the lag theory and legislative developments in the field of procedural law, the victim can not by way of litigation to protect their legitimate rights and interests. In modern society, there are many typical social welfare have been violated in the case, the results of these cases are against the plaintiffs, we analyze where common ground can be found due to the lack of effective legal remedies pathways and the relevant legal system provisions lead to the. The existence of these cases prove the necessity of the existence of public interest litigation system, China during the socialist construction, a great need for the protection of the public interest litigation system, but, so far, China's public interest litigation legal system has not yet established, in the modern society, the behavior of those who do not have the relevant legal system against social welfare regulation does not deserve the punishment has not been properly administrative sanctions, the interests of the community has not been properly protected.
(B) Establishing the need for public interest litigation system
Our existing public interest litigation system and foreign larger than the gap
Only from the comparison of the existing laws and regulations, it may be enough to explain the urgent needs of the public interest litigation system in China, has occurred objective facts unreserved its performance. In October 1999, two Toshiba notebook computer users prosecution of the Toshiba Corporation of Japan, the United States Court accepted the case in accordance with the class action, the two Toshiba notebook computer users all of a sudden become a 50 million U.S. users, Toshiba before the hearing reached a settlement with the U.S. Consumer, a total of $ 1,000,000,000 to pay compensation. At the same time, Chinese consumers losses suffered because of the same problem, but in hindsight, Chinese consumers are just on the computer plus some remedial measures trouble. Reality has given us the urgent need for the establishment of the Public Interest Litigation.
Our current Public Interest Litigation specification problem
For this case, the reason is, on the one hand, the level of China's economy and overall national strength is undeniable that in a relatively backward state than that of the United States, the overall quality of our national awareness of the law and the developed countries still a gap, so the face of this kinds of violations can not be resolved through legal channels. On the other hand, there is in our Litigation Law v. defects. For example, China's Civil Procedure Law Article 108, filed a civil action the plaintiff is the case of direct interest to citizens, legal persons or other organizations. 'It can be concluded, the plaintiff must bring a civil action in the ensure eligibility, that is based on the proceedings they have a direct interest in the case, while those with their own direct interests does not matter, just an action brought by public interests are infringed in the proceedings can not be accepted . Similarly, the relevant provisions in the Anti-Unfair Competition Law ':' The State encourages, supports and protects all organizations and individual acts of unfair competition, social supervision ', the statute describes the personal supervision illegal behavior , but does not require the individual to enjoy the right to sue in the social welfare are violated, the provisions of the Civil Procedure Law essentially the same. This situation creates our procedural law and substantive law of touch, so that the two can not be a better combination to serve the community, which led to the position of the substantive laws in the furnishings, making the Court of admissible public interest litigation when a dilemma, the court case against the legitimate interests of society, should be a criminal trial, but due to the current law is not perfect, the court had no direct use of the relationship between the plaintiff and the case dismissed prosecution or because the plaintiff does not have the standing to sue without filing a case, the court of this frustration is precisely because our country does not establish the relevant public interest litigation system, resulting in a lack of public interest litigation system, so that when the social welfare have been infringed when no relevant the legal basis.
Establishing Public Interest Litigation imperative
In a society ruled by law, there shall be a relief for damage, to provide relief to the already occurred or are occurring against the interests of the natural instinct of the judicial system, it is the countries. As the the western proverb said: 'There is no relief there will be rights?' Modern country under the rule of law, judicial relief is the last bulwark of protection of rights is the most fundamental and most important one, is to guarantee the establishment of a harmonious society, the rule of law countries the basic means, therefore, in modern society under the rule of law, litigation social justice is to protect the legitimate interests of an effective and popular way. Now, however, face many offenses against the public interest in China, if not directly interested parties, not only the law can not be timely and effective sanctions, but also for those who dare to stand up to speak in the public interest 'others' are not legal support, and even the procuratorial organs can only feel powerless and frustrated, but could do nothing. Meanwhile, the damage to the public interest, may not have a directly interested party, but you can not deny that the final damage to the interests of each associated individual citizens. With the continuous development of our society, the rule of law in the continuous improvement of people's consciousness will rise gradually, as an important part of awareness of the law, there will be considerable progress. When people's legal awareness to a certain height, it is clear that everyone can not tolerate their own interests because the law does not solve the issues of public interest and damage. Therefore, there is an urgent need to establish a complete set of civil public interest litigation system, this is not only the requirements to establish and improve the socialist legal system in China, but also to adapt to social development, and safeguarding social public interests and individual interests of the citizens of requirements. Reposted elsewhere in the Research Papers Download http://eng.hi138.com
Third, the establishment of the system of Public Interest Litigation in China
(A) Establishing the feasibility of Civil Suit System
Civil law system defects to make up by Public Interest Litigation
Legal system artificially contributing is inevitable, since the bear with the human factor, then it would lead to solve a problem with a certain degree of personal bias and not comprehensive. Subjectivity and one-sidedness lead us in dealing with conflicts of interest, it is not possible to have all aspects of care of, then it is bound to be selected, regardless of which side is selected, the other side will inevitably be compromised. Face such a 'fork in the road' in the legal, public interest litigation has become the solution to the problem of an effective means of relief. For example, in China's civil litigation system, a more important principle is the principle of 'trial without complaint', the court filing of generally have a reference to, but some violations did against the public interest, while there is no direct interest in the relationship of human existence, the duties of the legal requirements of the law to stand up and stop these illegal activities, to protect the public interest, but the laws do not know where to start, this time to rely on public interest litigants to come forward for the law to find a balance point, so as to safeguard the public interest. In addition, although the law is to adjust the norms of society, but can not take into account all aspects of society, in the legal reach of the 'dark', the law can not take care of the place, the introduction of public interest litigants, is undoubtedly a powerful law enforcement agencies a supplement is necessary to safeguard the interests of society and improve the socialist legal.
Civil Suit System own drawbacks can be avoided
Each system design defects are not perfect, public interest litigation is inevitable, entered into will be considered not in the process of the exercise will also have the problem that can not be expected. Rights are not concerns that are specific in the the civil public interest litigation system, in the other over the place, the of abuse of rights problem through the the institutionalization of been a very good to solve, then the in the here, as long as the able to establish a a good civil litigation system, but also the a certain can the best possible to avoid and to curb the abuse of the right. In addition to the ideas of the Chinese people, 'sued' after all, is not a glorious thing, in addition to the costs of legal proceedings can not be well received, an action, a lot of time, energy and financial resources so that many people choose to the other solutions, so the litigation explosion seems not to worry about the problem.
(B) China's civil establishment concept of public interest litigation system
1. The cost of litigation charging system
Public interest litigation generally relates to most of the problems concerning public interests, such as small and medium-sized animal protection litigation, as it relates to a wide range of the number of participants, inevitably lead to the subject matter of litigation amount are enormous, according to the general cost of litigation way to pay, litigation costs may be huge, generally the plaintiff is unbearable. Therefore, in legal fees, not to implement the system in advance, and after judgment against the defendant be borne by the defendant against the plaintiff, waive the plaintiff's litigation costs borne by the State to reflect the cost of litigation 'Public Interest Litigation Public Burden 'principle. For the plaintiff in litigation and other related costs, such as legal fees, transportation fees, witness costs, if the plaintiff made a last favor, you can request the court to sentence the defendant to bear the costs against the plaintiff, the cost or should be borne by the plaintiff.
(2) of the Public Interest Litigation proof system
In the Public Interest Litigation, the professionalism of the evidence is far more than other civil cases, and the Public Interest Litigation evidence dispersion characteristics, which exacerbated the difficulty of proof of the plaintiff. If the plaintiff has the burden of proof, due to the constraints of the plaintiffs in public interest litigation in which the position and the lack of expertise and other factors, resulting in its forensics difficulty is considerable; On the contrary, the defendant involved in the case within the scope of certain professional knowledge, but also the possession of the evidence has a relative monopoly, therefore, the defendant will be easier in obtaining evidence. Therefore, when the development of relevant public interest litigation system in China, should be implemented to some extent reverse burden of proof.
3 punitive damages system
Punitive damages also known as exemplary damages or compensation retaliatory refers to the amount of compensation made by the court exceeds the actual amount of damage compensation. Punitive damages not only to ensure that victims get a higher amount of compensation, but also through the wrongdoing people impose a heavier economic burden to punish wrongdoing, and perpetrators as well as the general capacity to contain and intimidate role. This helps eliminate the plaintiff sued concerns, and guaranteed the Public Interest Litigation procedures. Reposted elsewhere in the Research Papers Download http://eng.hi138.com