Theoretical basis and realization path of procuratorial public interest litigation mechanism in the field of women’s rights and interests protection
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D923.8;D926.3;D925

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    Abstract:

    Expanding the scope of public interest litigation cases is not only the resolution of the Fourth Plenary Session of the 19th CPC Central Committee, but also the key work of public interest litigation by procuratorial departments in recent years. The scope of accepting cases of procuratorial public interest litigation stipulated in Administrative Procedure Law and Civil Procedure Law is concentrated in related fields involving national interests and decentralized public interests. However, the rights and interests of specific groups are mostly personal interests, which are usually remedied by means of private interest litigation. In recent years, the procuratorial organs have handled a large number of public interest litigation cases to protect the rights and interests of specific groups. Through empirical analysis, the article finds that these cases are mainly closed through pre-litigation procedure of administrative public interest litigation or social governance procuratorial proposal, and most of the lawsuits filed are civil subrogation lawsuits. The Law on the Protection of Minors, which was amended in 2021, stipulates the provisions of procuratorial public interest litigation for the protection of minors. The Law on the Protection of Women’s Rights and Interests (Amendment), submitted to the Standing Committee of the National People’s Congress for deliberation in December 2021, also drafts the procuratorial public interest litigation clauses for the protection of women’s rights and interests. In order to resolve the huge differences between practice and theory of procuratorial public interest litigation for specific groups’ rights and interests protection, the article analyzes that, women’s rights and interests are characterized by sociality, public interest and order in addition to their personal attributes. Traditional laws tend to use married women, pregnant and lactating women, unmarried women and so on to regulate women’s rights and interests based on sociality, so that women’s rights and interests needs to be carried out in the family structure and social structure, which is difficult to be fully protected. Actively protecting women’s rights and interests conforms to the "social" nature of socialist rule of law. The "publicity" of women’s rights and interests lies in the fact that when individual women’s rights and interests are damaged, there are often cases of systematic damage to women’s rights and interests. The protection system of women’s rights and interests in China is with characteristics, and the relevant legislative system is complete, but it is hard to avoid the lag and omission of legislation. The law enforcement coordination mechanism is not perfect, the prevention mechanism is preferred, and the disposal means are lack of compulsion. The criminal and civil relief mechanism also needs to be improved. To sum up, the article points out that it is feasible and necessary to embed the procuratorial public interest litigation mechanism into the current diversified law enforcement and relief mechanism in the field of women’s rights and interests protection. In view of the limited judicial power, the intervention of administrative procuratorial power (including procuratorial public interest litigation) in the protection of women’s rights and interests can be divided into three forms. Through the study and judgment of relevant criminal cases, analyzing potential or existing administrative violations, procuratorial supervision of administrative violations should be taken. The principle of criminal priority should be followed between criminal means, means of procuratorial supervision of administrative violations and means of public interest litigation. In cases where women’s rights and interests have been infringed but social and public interests have not been damaged, the means of procuratorial supervision of administrative violations can be adopted. However, if the case meets the standard of public interest litigation, public interest litigation can be filed.

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刘艺.妇女权益保障领域检察公益诉讼机制的理论基础与实现路径[J].重庆大学学报社会科学版,2022,28(2):171~182

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  • Online: April 25,2022
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