[Law Submit] The theoretical context of the development of civil procuratorial system

论 The theoretical research of civil prosecutors starts from the purpose, value, concept, mode, principles, scope, procedures, methods, guarantees, and other basic concepts and frameworks. Give play to the leading role of theory on practice, a self -confidence and autonomous civil procuratorial theoretical system that shows self -confidence and Chinese characteristics has been formed.

察 The subdivided civil procuratorial theory is the refinement and implementation of the theory of the overall civil procuratorial theory in the procedures. Its theoretical propositions can not only conduct general, abstract, and overall research at the uniform level. Institutional studies at the level of sexual level.

Author of this article: Renmin University of China Law School

Professor and doctoral supervisor Tang Weijian

Zi said: Forty but not confused. Since the Civil Procedure Law of the People's Republic of China in 1982 (Trial), the People's Procuratorate has established "the people's procuratorate has the right to supervise the civil trial activities of the people's court" to this day, and the legislative development of my country's civil procuratorial system has reached forty years. In this context, sorting out the theoretical context of the development of the civil procuratorial system in my country, and it is not good for future civil procuratorial theoretical research and the development of civil procuratorial systems. In general, the development of my country's civil procuratorial system has gone through four major theoretical steers.

From controversy to consensus formation

In the relatively calm civil litigation law studies, civil procuratorial theoretical research is a hot land full of controversy and fruitful. It can be said that the theoretical research of civil prosecutors is developed in debate. The earliest debate about civil prosecution was a dispute over waste. The negative thesis believed that the equality principles of the lawsuit of the lawsuit, the waist triangle structure of the distorted lawsuit, etc., that is, the civil prosecutor as the intervention of public rights and the way of resolution of private rights disputes. Civil litigation is incompatible. However, the negative theorists must not face many dilemma in the judicial practice of our country, and judicial problems such as "difficulty in prosecution", "difficulty in proof", "difficulty in execution", and "difficulty in appealing" are enough to show the improving the fairness, authority and authority of judicial justice. Trustworthy is urgent. These dilemma and problems are in the final analysis with the imbalance and the mature litigation system and the litigation model. As an important institutional leverage for correcting this imbalance, procuratorial supervision has gradually received attention and attention, and after the collision and contention of theoretical views, the consensus on procuratorial supervision was finally formed academic. At present, the academic community's awareness of the necessity of procuratorial supervision and its status as the basic principle of civil lawsuits has reached a high degree of consistency. The practical results of this consistency cognition are the "Several Opinions on Implementing Legal Supervision on Civil Trial and Administrative Litigation (Trial)" jointly issued by the Supreme People's Court and the Supreme People's Procuratorate in 2011 (trial) and "Trial)" The notice of the pilot work of civil execution activities ", especially the amendment of the Civil Procedure Law in August 2012, the amendments to the basic principles and institutional procedures of civil procuratorial supervision and institutional procedures, and adapted to the civil prosecution supervision system of my country's national conditions and actual needs.

From strengthening to transformation

The regulations on procuratorial supervision in my country's civil proceedings have become key contents of the amendments to the Civil Procedure Law. The high frequency of modification and the large amount of modification are not as good as other systems in the civil procedure law. From the provisions of the basic principles of procuratorial supervision in 1982, the provisions of the basic principles of procuratorial supervision, the provisions of the 1991 Civil Procedure Law on protest, and the detailed provisions of the 2007 Civil Procedure Law on the Civil Procedure Law on the 2012 Civil Procedure Law on the procuratorial supervision It is not difficult to find that several revisions of the Civil Procedure Law have presented the development of my country's civil procuratorial system two major characteristics: one is to continuously strengthen and the other is to continue to transform. From the expansion of the scope of supervision, the diversification of supervision, the clear level of supervision, the refinement of the supervision procedure, to the improvement of the supervision and security measures, the civil procuratorial system has been continuously strengthened; , Optimization of supervision in the field of supervision, optimizing the structure of supervision, enriching supervision methods, complete supervision procedures, ensuring supervision measures, and harmonious supervision relations, optimization of the supervision environment, and the continuous transformation of civil procuratorial systems. Civil procuratorial transformation is strengthened and strengthened in the transformation, which reflects the dialectical unity of civil procuratorial composition and construction. Taking the model of civil prosecution as an example, my country's civil prosecution model has successively experienced four major development stages of intervention, unified rule of law, procedure guarantee, and public welfare representatives. Specifically, the civil prosecution model of the civil proceedings in 1982 reflected the intervention -type civil procuratorial model. In 1991, the Civil Procedure Law reflected the unified civil prosecution model of the rule of law. The Civil Procedure Law reflects the public welfare representative civil procuratorial model. Today, with the increasing socialization of civil litigation, the public welfare representative civil procuratorial model is still in shape. Not only the basic model of civil procuratorial supervision has undergone institutional changes, but also the fundamental changes in civil procuratorial supervision behavior and their guiding concepts based on the basic model: First, from intervention supervision to guarantee supervision. The interventionist supervision from the planned economic background to the reform of the reform of the market economy system is based on the protection of the party's right to appeal and the court's independent trial supervision. Second, the transformation from opposite supervision to collaborative supervision. In addition to the traditional protest supervision methods, unforgettable supervision methods such as increasing procuratorial advice and attending the trial committee meeting are increased to achieve a benign interaction and rational communication with trial rights. Third, from external supervision to internal supervision. At present, the procuratorial supervision should use the perspective of insiders as a incision. The purpose of the procuratorial organs to participate in civil lawsuits is not to be or mainly for the supervision of the external person, but to support and guarantee the inside of the synergy. The transformation from dependency to autonomy

In the early days, in the early days, the theoretical origins were influenced by the theoretical origin in the early days, and the purpose was to serve the highly centralized planned economic system and deny private autonomy; on the other hand, in the institutional system In terms of origin, affected by the criminal procuratorial supervision system, it has formed an auxiliary status of "criminal attachment civil" and denies the particularity of civil and administrative procuratorials. This dual "dependence" not only restricts the function of my country's civil procuratorial system, but also produces some controversy, which is inconsistent with the reform of the market economy system at that time. In this situation, in 1991, especially after the amendment of the Civil Procedure Law in 2012, it had a new change. It has initially established The civil litigation procedure system that matches the inherent needs of the market economy, and plays an important role in solving the procedural justice crisis, procedural load crisis, and procedure efficiency crisis facing civil litigation procedures in practice. In this context, the civil procuratorial system and its theory ushered in the spring of development, and injecting a strong motivation.

The theoretical research of civil prosecutors starts from the purpose, value, concept, mode, principles, scope, procedures, methods, guarantees, and other basic concepts and frameworks. In the process of institutional construction, grasp the correct direction, respond to practical demands, master the rhythm of development, and give full play to their full play. The theoretical leading role in practice, a self -confidence and self -confidence civil procuratorial theoretical system that shows self -confidence and Chinese characteristics has been formed.

From fragmented to systematic construction

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