Four aspects to improve the quality of public interest litigation “punishment for the people”

2022-07-19 0 By

In recent years, the number of criminal incidental civil public interest litigation has been rising year by year. For how to determine whether to Sue, who to Sue, how to Sue and what to Sue, the author discusses four ideas.First, to examine whether the damage to social public interests, to clarify the case “can Sue”.Social public interest is an open concept with no clear definition. It is generally believed that it is enjoyed by an unspecified majority and has fundamental, holistic and developmental interests.In practice, it is easy to cause disputes because the concept of social public interests is not properly grasped, and the concept of public welfare is obviously limited by considering whether it damages public welfare only from the perspective of the ownership of the right to directly benefit.In the practice of handling cases, the understanding of the scope of public interest should be objective.Such as a particular area of the environment and the infringement of people for a clean environment, clean air, water and soil and so on need to meet, and the interest is not only belong to the area specific group or collective, is the category of public interest, should not be occurred in case of infringement of the right of qualitative to presumption of the specificity of the object.Second, identify the subject of responsibility and solve the problem of “who to Sue”.It is necessary to accurately grasp the different requirements of criminal and civil litigation to initiate criminal incidental civil public interest litigation.For example, in criminal cases, the co-defendants do not always bear civil liability.In the employment relationship, the civil liability arising from the employee’s behavior is generally borne by the employer.There are acts of duty, acts of apparent agency, etc., even if constitute a criminal crime, the actor need not bear civil liability.Or both parties jointly commit a tortious act, but only one party is guilty, the other party shall still bear joint civil tort liability.According to law, the procuratorial organs have choice at this time, you can choose one or all act jointly liable for damages, but in judicial practice, the court often from the perspective of judicial trial, the criminal incidental civil public interest litigation and criminal litigation request, otherwise requires that procuratorial organs prosecution alone, this problem should be attention in practice.Also note that the writing of the complaint must be accurate.Such as stipulated by the civil code of special subject including individual businesses and leaseholding farm households, nonprofit legal person, especially as a legal person, unincorporated organization, and the special provisions in the civil procedure law, have the shop name is individual and industrial and commercial door to in the lawsuit, indicate the name, if not indicate when the prosecution, there is a charged body writing errors, the risk will not be accepted or rejected by the court.Three, a comprehensive review of the investigation, to solve the problem of “how to Sue”.To deal with criminal incidental civil public interest litigation cases, we should adhere to the concept of “three responsibilities simultaneously” : criminal liability, civil liability and administrative liability.Especially in the case of administrative punishment and criminal punishment connection, even if the criminal responsibility of the actor is investigated in the case, but also let it bear the civil compensation, we still need to pay attention to the administrative punishment still need to make administrative punishment.The time limit for handling criminal cases is short, but a civil public interest lawsuit must go through the pre-litigation procedure, and the procuratorial organ shall issue a pre-litigation announcement.In practice, some courts have rejected prosecutorial prosecution on the grounds that the prosecution did not make an announcement or filed a lawsuit within 30 days of the announcement.In this regard, the procuratorial organ may make a public announcement in advance in handling cases, and may make a public announcement if it discovers that a case can be concluded during the approval and arrest stage.The ascertainment of facts in criminal incidental civil public interest litigation is based on the facts ascertained in the criminal indictment, but other facts ascertained after investigation may not be restricted by the ascertainment of facts in the criminal indictment.The unrecognized or attempted part of the criminal indictment, such as joint crime, is the judgment made by the court according to the constitutive elements of the crime and the evidential standards of conviction and sentencing, and cannot exclude them from bearing civil liability.The procuratorial organs can intervene in advance, guide the public security organs to collect evidence of public welfare damage, do a good job of obtaining evidence of qualitative and quantitative damage in advance, and take the initiative to guide the responsible persons to assume civil liabilities such as compensation for damage and repairing public welfare damage.Four, with a definite aim, solve the problem of “what to complain about”.At present, with the continuous expansion of the field of public interest litigation, the charges that can be filed with civil public interest litigation are also gradually expanding, public interest litigation undertakers should be familiar with.The trend of criminal action, especially the determination of charges, determines the appeal of the incidental civil public interest action.For example, for food and drug safety-related crimes, if criminal prosecutors identify the stolen goods involved as food, then public interest litigation can raise 10 times the punitive damages according to the food safety law.If the stolen goods involved are identified as drugs, public interest lawsuits can only claim three times the amount of punitive damages under the consumer protection Law.Another example is that when there is an accomplice in the criminal case of illegal fishing, if the principal offender has another illegal act of forced trading, illegal fishing and forced trading produce competition and cooperation, and are finally identified as forced trading, it is not appropriate to bring an incidental civil public interest lawsuit.In addition, for the destruction of environment and resources of criminal incidental civil public interest litigation, to clarify the goal of litigation is not required the defendant to compensate how many money, but to restore the damaged public interest, therefore, the claims to stop the infringement, eliminate the obstruction, and eliminate the danger, succeeding to the proliferation of discharge, labor compensation and other demands is consistent with the purpose of litigation.(Written by Nantong People’s Procuratorate of Jiangsu Province) Source: Procuratorial Daily