□ in the mainland, procuratorial organs, as state legal supervision organs, have the ability and motivation to initiate public interest litigation, and can make up for the lack of individual public interest litigation. At the same time, the public interest litigation initiated by the procuratorial organs can not only combat and sanction acts that infringe on the public interest or correct illegal acts, but also deter possible related acts, so as to achieve the prevention and control of the "tragedy of the commons" to a certain extent.
Public interest litigation refers to an objective lawsuit filed by a relevant organization or individual with a court for conduct that infringes upon the public interest. On the mainland, procuratorial organs, as state legal supervision organs, have the ability and motivation to initiate public interest litigation, and can make up for the lack of individual public interest litigation. At the same time, the public interest litigation initiated by the procuratorial organs (hereinafter referred to as "procuratorial public interest litigation") can achieve the restraint of administrative power in violation of the law in accordance with the law, and ensure the unity of the country's rule of law and legal order, which can not only combat and sanction acts that infringe on the public interest or correct illegal acts, but also deter possible related acts, so as to achieve the prevention and control of the "tragedy of the commons" to a certain extent.
The history of public interest litigation
Public interest litigation originated in ancient Rome and was established to protect the public interest. According to ancient Roman law, not only could state officials file lawsuits when the public interest was harmed, but also ordinary citizens could file public interest lawsuits if the state officials were not caught or did not pay attention. It can be said that from the beginning of its establishment, public interest litigation is a system that relies on the power of the public to achieve the protection of public interests. In a sense, this is not a "self-interested" litigation system, but a "public" litigation system. In the early days of ancient Rome, violations of the law could be divided into private and public offenders. This is actually consistent with the jurist Urbian's division of "public law" and "private law" at that time. Private offenders are similar in nature to torts today, but in different scopes; The "liability for stacking and hanging objects" stipulated in the legal system of ancient Rome belongs to quasi-private offenders, which is equivalent to the scope of tort liability law now. The reason for the above-mentioned legal provisions is that at that time, the development of the commodity economy, the height of the houses inhabited by the people was much higher than before, especially in the Italian peninsula, there were often strong winds, which would blow off the objects hanging from the height of the houses, which could lead to injuries. Based on this, even if the stacked or hanging objects are not injured, any citizen has the right to file a lawsuit in advance with the judge, and the judge can also hold the relevant occupants accountable accordingly, whether these occupants are house owners, tenants or managers, and may be sentenced to compensate the complainant with a corresponding amount of fines. This reflects that social development has promoted the perfection of Roman law, and directly characterizes the development of law from protecting personal interests to protecting social welfare.
Since entering modern society, public interest litigation has originally arisen against the "tragedy of the commons", which are also public interests or public resources. The "tragedy of the commons" is closely related to the "enclosure movement" in Britain in the 15th and 16th centuries. Since the meadows and so on belonged to the government commons at that time, that is, any sheep breeder had the right to use these commons. Based on the nature of maximizing human interests, sheep breeders will try to raise as much as possible, so that they can get more benefits. However, if everyone raises more sheep, it means that the utilization rate of grassland will be maximized, which will eventually lead to the grassland not being able to grow enough grass to raise sheep, the land will also be degraded and the resources will be depleted, and the commons will become barren due to over-stocking, resulting in the occurrence of the "commons tragedy". Later, the British aristocracy circled these meadows and became personal property. This is one of the important reasons for the occurrence of the "enclosure movement" in the United Kingdom.
The "tragedy of the commons" can be derived from the question of how the public interest can be protected. Especially when the public interest is unprotected, it will become a "commons", and human nature will flood on the "commons", thus seriously harming the public interest. If private interests are damaged, the subject of rights can claim compensation through litigation, while the dilemma faced by the public interest is that no subject can file a lawsuit for compensation. Especially with the development of modern society and the gradual expansion of the scope of public interest, it has become a difficult problem, which is also one of the internal bases for the emergence of public interest litigation.
Jurisprudence of public interest litigation
The theory of the expansion of the fitness of the parties. The theory of the expansion of party eligibility comes directly from the theory of party eligibility. Party eligibility generally refers to the legal interested entity's eligibility to file a lawsuit against the relevant rights or damage to the legal relationship. This means that according to traditional litigation theory, if a litigation plaintiff wants to launch a lawsuit or put forward his own claims, he or she should have a legal interest in the case, or an interest in the case, which is one of the most basic conditions for initiating traditional litigation, otherwise it will not be possible to file a case or even if the case is filed, it will be rejected at trial. However, in cases of environmental pollution, loss of state assets, and destruction of resources, there is a lack of direct subjects with legal interests. This is also a realistic requirement for the procuratorate to intervene in public interest litigation as a qualified plaintiff. In this way, by expanding the scope of eligible parties in public interest litigation, it not only forms an expansion in the subject of litigation, but also meets the needs of the continuous expansion of the scope of public interest cases in modern society. At the same time, the procuratorial organs intervene as legal supervisors, whether in terms of legal status or function, it is easier to achieve the protection of the infringed social welfare. This is the fundamental driving force for the appropriate expansion of parties in public interest litigation.
The theory of checks and balances on power. The Mainland Constitution gives the procuratorial organs the role of special legal supervision organs, which means that in addition to accepting the supervision of the organs of state power, the procuratorial organs have the power to supervise other relevant state organs in accordance with the law, which is the constitutional or legal foundation of public interest litigation. In jurisprudence, the procuratorial organs' checks and balances on administrative power through public interest litigation in accordance with the law are also determined by the nature of power. It should be said that executive power is necessary, it can suppress the evil elements in human nature, improve the efficiency of government operation, and more effectively safeguard the interests of citizens. However, the uninhibited nature of power and the inducement of power by interests may hinder its functioning. Power is of a double-edged nature, as is executive power. In modern society, due to the increasing scope of administrative management and the expansion of administrative power itself, it is easy to lead to the flooding of power operation. Supervising illegal administrative acts in accordance with the law through public interest litigation is the result of the modern state's profound understanding of power. Establishing a supervision and check mechanism for procuratorial public interest litigation is an optimized choice for the state to self-inhibit power.
Powers should be monitored, and executive powers are no exception. In order to effectively prevent and curb the abuse and alienation of power, it is not only necessary to use civil rights to supervise and restrict administrative power, but also to "control power with power" between powers. Checking and balancing administrative power through procuratorial power in accordance with the law is part of the normal expenditure of the state's management costs. At the same time, the supervision between powers is more systematic, institutionalized and standardized, which belongs to the permanent mechanism and can play a better effect under the same conditions. Through public interest litigation, it is possible to realize the lawful supervision of administrative power by the procuratorial power and correct its illegal acts in the administrative field, so as to realize the optimal operation of administrative power.
The theory of substantive justice. If procedural justice is justice in form or means, then substantive justice directly opposite it is justice in purpose or content. Substantive justice is the ultimate pursuit of the law. In fact, no matter how complete a public policy is in form, it is also an improper policy if it does not implement substantive justice. As far as procuratorial public interest litigation is concerned, substantive justice should be taken as the theoretical basis.
The value of public interest litigation
Promote the unification of the rule of law and the improvement of legal order. For example, in the process of law enforcement by administrative organs, there will be illegal law enforcement or ultra vires law enforcement. On the one hand, this may be related to the gaps or loopholes in the legislation itself; on the other hand, it may also be related to the administrative organs exceeding the statutory boundaries. Therefore, the initiation of public interest litigation through procuratorates in accordance with the law can supervise and correct the illegal or ultra vires acts of administrative organs, provide useful suggestions for relevant legislation in the future, and also help to promote the improvement of public decision-making and the institutionalization level of the public sphere, so as to achieve the good effect of promoting the unification of the rule of law and the improvement of legal order.
Promote substantive protection of the rights of vulnerable people. For ordinary people, compared with public interest infringers in environmental pollution, food and drug infringement, they may be in a weak position in social and economic aspects, and they are obviously in a weak position in the confrontation with infringers or illegal acts of administrative organs. Even if the violated population is granted the right to a remedy in the legal sense, it may be reduced to formalities due to the lack of correspondingly powerful means. Therefore, the establishment of a public interest litigation system in the mainland will help to enhance the participation capacity of vulnerable victims and help them obtain effective remedies. Procuratorial public interest litigation has the disposition to take into account personal interests while safeguarding the public interest. In public interest litigation, people who have endured the "tragedy of the commons" can use the power of the procuratorate to enhance their ability to protect their rights.
Enhance the credibility of procuratorial organs through due process. An important function of procuratorial public interest litigation is to use procuratorial power to supervise illegal administrative acts and protect the public interest or public order in accordance with the law. Public interest litigation itself is also a process of due process operation, through due process, so that acts that infringe on the public interest or illegal administrative acts can be corrected, so that the credibility of procuratorial organs can be fully demonstrated in due process, and thus the credibility of procuratorial organs can be further enhanced.
(The author is a professor at East China University of Political Science and Law) (Song Yuansheng)
(Procuratorial Daily)