How to get rid of the embarrassment of "supervision" and "litigation" in civil protest

Analysis of the present situation of civil protest in four grass-roots procuratorates in Huaibei City, Anhui Province 1. Basic situation of civil protest and rectification of illegal acts in Huaibei grass-roots hospitals in recent three years List of civil protests in recent three years List of opinions on rectification of illegal acts in court trials in recent three years 2. The main practice of legal supervision of civil trial activities of people's courts Article 14 of the General Principles of Civil Procedure clearly stipulates that "people's procuratorates have the right to exercise legal supervision over civil trial activities". This provision should be said to be a declaration of principle, and procuratorial organs generally do not regard it as the applicable basis for legal supervision of civil trial activities of the people's courts. How to supervise the civil trial activities of the people's courts according to law In procuratorial practice, procuratorial organs in various places basically follow the provisions of Articles 179, 187, 188, 189 and 190 of the Civil Procedure Law. In other words, the only legal channel for procuratorial organs to exercise legal supervision over civil trial activities of people's courts is protest. Huaibei People's Procuratorate has four grass-roots procuratorates: Lieshan District Hospital, Xiangshan District Hospital, Duji District Hospital and Suixi County Hospital. In recent years, there are two main ways to supervise the civil trial activities of grass-roots people's courts: one is legal way-protest; Second, legal channels-procuratorial suggestions and notices to correct illegal acts. In addition, the four grass-roots procuratorates have also carried out work such as supporting prosecution, urging prosecution, criminal incidental civil litigation, and public interest litigation. However, the author believes that supporting prosecution, urging prosecution, criminal incidental civil litigation, public interest litigation and other work can not be regarded as the scope of litigation supervision, but only the exercise of procuratorial litigation rights. The main measures taken by grass-roots procuratorates to supervise the civil trial activities of the people's courts are basically reflected in the protest against the court's civil judgments, such as strengthening publicity and expanding the source of cases; Strict examination to improve the quality of handling cases; Protest in court, dynamic legal supervision of court trial activities, and so on. For illegal or improper behaviors found in protest retrial, face-to-face communication after trial is mostly adopted, and in a few cases, procuratorial suggestions or notices to correct violations are issued. However, the effect of issuing procuratorial suggestions or correcting illegal notices is very bad. In most cases, the court is unwilling to sign for it for the simple reason that there is no legal basis. Third, the practical dilemma of civil protest-the embarrassing civil procedure law of "supervision" and "litigation" gives the grassroots people's procuratorate the right to supervise the court's trial activities and the right to protest against the civil judgment of the people's court. In the trial practice, the intermediate people's court often refers the retrial case of protest to the grass-roots court that originally tried it. Based on the principle of procuratorial work at the same level, the retrial cases of protest are basically attended by grass-roots procuratorates. How did the people's court of first instance deal with this kind of case from ruling on protest retrial to ruling on this kind of case? There is only one general provision in the current civil procedure law on how to grasp the status of the procuratorial organ and how to handle the protest, that is, the trial shall be conducted in accordance with the procedure of first instance, and the parties may appeal against the judgment or ruling made. The procedure of first instance is an ordinary procedure without the participation of procuratorial organs, and the judgment documents of the procedure of first instance do not need to respond to the civil protest of procuratorial organs, which is very different from the retrial procedure of civil protest. There is no provision in the Civil Procedure Law on how the people's procuratorate sends personnel to appear in court to protest retrial cases, how to exercise procuratorial power and how to ensure the unified and correct implementation of state laws. The contradiction between the infinity of procuratorial supervision stipulated in the general provisions of the Civil Procedure Law and the uniqueness of protest means stipulated in the specific provisions reveals the division between "the scope of supervision and the whole process of litigation" and "the object of supervision is only the result of civil judgment" from the institutional level, and also exposes the division between "supervision" stipulated in the general provisions and "litigation" stipulated in the specific provisions. In addition, the two procuratorial organs and lawyers have different understandings of the legal provisions and their respective positions. The conflict and opposition between the two procuratorial organs and lawyers in the practice of civil protest retrial is beyond their position and coordination in the Constitution. Judging from the civil protest practice of four grass-roots procuratorates in Huaibei city, procuratorial organs are the main body of legal supervision in the process of filing protests; In the process of civil protest trial, the people's court takes the judicial lead in hearing protest cases, while the procuratorial organ takes part in the litigation process as the subject of litigation rights, which leads to the procuratorial organ being both the subject of legal supervision and the subject of litigation rights. This situation is quite common in the whole province and even the whole country. Through the investigation of four grass-roots procuratorates in Huaibei City, the people's courts regard procuratorial organs as the main body of litigation rights in civil protest retrial, which is mainly manifested in the following aspects: (1) It is difficult for procuratorial organs to obtain the case files, and some court presidents are not allowed to leave the hospital after signing the case file transfer book; Some courts refused to cooperate, and the files could not be transferred for four or five months, and then the procurator-general came forward to sign them out; Some courts don't allow copying court transcripts, and so on. There may be many reasons for the difficulty in adjusting the examination paper, but the basic point is that the grass-roots people's courts have not adjusted the relationship between supervision and supervision between procuratorial organs and people's courts, and there are problems in understanding. (2) During the trial, the protest view of procuratorial organs was taken as the object of cross-examination and debate, and all four grass-roots courts in Huaibei City existed. (3) If the procuratorial organ does not participate in the retrial of a civil protest case, the court will not hold a court session. Article 190 of the Civil Procedure Law stipulates that when a people's procuratorate files a protest case, the people's court shall notify the people's procuratorate to send personnel to appear in court. However, this provision of the Civil Procedure Law does not stipulate that the procuratorial organ must appear in court after receiving the notice from the court, nor does it stipulate the status, tasks and responsibilities of the procuratorial organ to appear in court. This practice of the people's court is just like the retrial of criminal protest. The people's court has not made it clear that the status of criminal protest retrial and civil protest retrial procuratorial organs is obviously different. (D) The expression of the people's court's civil protest retrial judgment documents generally takes the procuratorial organ as the main body of the right of action, such as "the section on xx was not mentioned by the protest organ, so the requirements of xx mentioned by the plaintiff in the trial were not adopted." "Our court refused to support (or adopt) the protest request of the procuratorial organ." A few years ago, two grass-roots courts "rejected the protest" and the referee wrote "rejected". In the retrial of civil protest, the chief prosecutor who undertakes civil protest cases is quite critical of the above two situations (2) and (4) which are common in people's courts. Four. Demonstration on the position of procuratorial organ in civil protest retrial (1) In civil protest retrial, procuratorial organ is the main body of supervision. From the perspective of positive law, civil protest is a kind of litigation behavior made by the procuratorial organ in accordance with the trial supervision procedure after reviewing the civil effective judgment of the people's court and finding that there are indeed mistakes and meeting the protest conditions stipulated in the Civil Procedure Law. Because the civil protest is aimed at the wrong judgment made by the people's court, its nature should be defined as legal supervision, which is not controversial. For this type of supervision, most academic and practical departments define it as post supervision and result supervision. The author thinks that defining civil protest as post supervision and result supervision still fail to grasp the essence of civil protest supervision. The essence of civil protest should be evaluation supervision, and the object of evaluation is the civil effective judgment of the people's court. The way of supervision is to make a negative evaluation of the civil effective judgment in substantive law and procedural law, and the legal effect of negative evaluation will inevitably lead to retrial. Therefore, in the retrial of civil protest, the people's court is the subject of supervision, and the procuratorial organ is the subject of supervision. The people's court shall make supervisory opinions on the protest opinions of the procuratorial organs in the judgment documents. If the people's court asks the parties to cross-examine and debate the protest viewpoint of the procuratorial organ in the retrial of civil protest, it will confuse the legal relationship of litigation supervision between the procuratorial organ and the people's court constructed by the civil procedure law, and replace the supervisory subject-the procuratorial organ with the supervised subject and accept the judicial review of the people's court. (two) in the retrial of civil protest, the procuratorial organ is not a party to this case. In the practice of civil procuratorial supervision, except for the public interests of the state and society, procuratorial organs generally do not take the initiative to review civil trial cases. If a party to a case or other interested party refuses to accept the effective civil judgment of the people's court and files a complaint with the procuratorial organ, the procuratorial organ will start the review procedure of the corresponding judgment of the people's court. If the conditions for protest are met, the procuratorial organ shall lodge a protest and the people's court shall make a retrial ruling. During the trial, the procuratorial organs generally only read out the protest, indicating the protest point of view, indicating that the supervision procedure of the people's court has been started, and the people's court will not participate in the court investigation or court debate, and the people's court will conduct the trial again according to the procedure of first instance or second instance. Throughout the whole protest chain, the supervision of civil protest by procuratorial organs is only reflected in two links, namely, the people's court's right to evaluate the civil effective judgment and the right to start the civil retrial procedure. Moreover, the supervision of the procuratorial organs over the civil effective judgments of the people's courts also stems from the complaints of the parties to the case. Therefore, in the retrial of civil protest, the procuratorial organ is not a party to the case. For example, the people's court stated in the judgment document: "The part about ××××", that is, taking the procuratorial organ as the object of investigation and equating the procuratorial organ with the parties to the case, not only shook the position of the procuratorial organ as the legal supervisor, but also violated the principle of balance between attack and defense in litigation. (3) In the retrial of civil protest, the procuratorial organ is not a state prosecutor. Although both civil protest and criminal protest have the meaning of protest, they are obviously different in essence. First, civil protest is generally based on the petition of the parties. The fact that the parties in a civil case do not appeal shows that they have served the judgment and exercised their litigation rights. According to the principle of autonomy of private rights, no matter whether the civil judgment is correct or not, there is no need for procuratorial organs to take the initiative to protest. Criminal protests are not based on complaints from victims. As long as the procuratorial organ thinks that the criminal judgment meets the conditions of protest, it can have the right to protest in the second instance procedure and in the trial supervision procedure. Second, in the civil protest, the procuratorial organ exercises the duties of examination, evaluation and protest according to law, and is neither the plaintiff nor the defendant in civil cases, nor the third party in civil proceedings. Therefore, the procuratorial organ does not have the status of litigation subject in civil protest. In criminal protest, procuratorial organs mainly pursue crimes as state prosecutors, and their main position is basically similar to that of plaintiffs and appellants in civil cases, belonging to the category of "state plaintiffs and appellants". Further analyzing the criminal protest, the essence of the protest of the second instance procedure is that the procuratorial organ exercises the right of appeal on behalf of the state, which is of course the extension and continuation of the first instance public prosecution under the second instance final review system; The protest of trial supervision procedure should be the exercise of procuratorial supervision right, but once the retrial procedure is started, the procuratorial organ still participates in the lawsuit with the prosecution and exercises the right of public prosecution. That is to say, for criminal protest, whether it is the protest of the second instance procedure or the protest of the trial supervision procedure, the procuratorial organ in the trial participates in the litigation as the subject of the right of action, and its status as the subject of the right of action is obvious. If the people's court denies the procuratorial organ's protest view in the form of "rejecting the protest" in the text of the civil protest retrial judgment document, it will confuse the civil protest with the criminal protest and mistake the procuratorial organ's status as a "legal supervisor" as a "state prosecutor" in the civil protest retrial. V. Experience and suggestions for improvement in solving the practical dilemma of civil protest (I) Main experience in solving the practical dilemma of civil protest The embarrassing position of procuratorial organs in the retrial of civil protest. There are many reasons, including legislative reasons, vague provisions and subjective encouragement of judicial interpretation, and the interests of judicial organs and their maintenance. Any "balance of power" is the result of collision, compromise, collision and re-compromise. In recent years, based on the constitutional orientation of procuratorial organs, the people's administrative departments of four grass-roots procuratorates in Huaibei City have fully performed their legal supervision duties, and conducted legal supervision on every link of civil litigation and administrative litigation, such as filing supervision, trial supervision and execution supervision. , and achieved remarkable results, but the conflict and compromise, persistence and concession, independence and communication between them never stopped. Successful experience mainly includes the following three aspects: 1. Organizing symposiums or symposiums is a regular form to promote the two courts to reach a * * * understanding of a certain issue or many aspects. The four grass-roots procuratorates in Huaibei hold this meeting every year, which not only coordinates the relationship between the two levels of procuratorates, but also solves the problems well. 2. Giving full play to the role of grass-roots power organs is an effective carrier to do a good job in grass-roots civil protest. Putting the civil protest work on the agenda of the meeting of the Standing Committee of the County People's Congress and inviting the deputies of the County People's Congress to comment on the civil protest work can not only comprehensively report the achievements of the civil protest work, but also better reflect the existing problems. Only by clarifying the problems and the reasons can the supervision of NPC be put in place and the problems can be better solved. 3. Inviting legal experts to teach is an indispensable way to broaden one's horizons, broaden one's thinking and improve the ability of civil protest. The dilemma of civil protest in reality urgently needs the guidance of legal theory and the logical analysis and demonstration of legal theory. In recent years, four grass-roots procuratorates in Huaibei regularly or irregularly invited some procedural law scholars from Anhui University, Huaibei Normal University and other institutions of higher learning to give special lectures on the practical problems and frontier theoretical problems of the civil procuratorial system, providing effective intellectual support for civil procuratorial supervision. (2) Some suggestions on solving the practical dilemma of civil protest 1. Strengthen the propaganda of procuratorial theory, actively advocate the contention of theoretical viewpoints, and play the role of "contention" of legal theory. Procuratorial organs at all levels should strengthen the research of applied law and theoretical law involved in procuratorial work, conduct extensive theoretical research on the provisions, phenomena and problems that deviate from the socialist core value system and the basic value category of law, creatively put forward the best scheme that can solve the problems reasonably, and actively participate in management innovation and system innovation. In addition to using traditional media such as people's procuratorates, theoretical edition of procuratorial daily, procuratorial newspaper, etc., we should also actively play the role of communication and collection of self-run publications, theoretical annual meetings, special seminars and other carriers of procuratorial organs, so as to achieve contention of views, debate of controversial points, solution of problems and standardization of law enforcement. Network propaganda has always been the weakness of procuratorial theory propaganda in China. China has entered the Internet era, and the Internet is the real "mass media". Actively encouraging Internet propaganda and strengthening the management and input of Internet propaganda are important channels for us to promote procuratorial theory propaganda in the next step. 2. Give full play to the functions of the Internal Affairs Judicial Committee of the Provincial People's Congress and promote the two-level courts to formulate guidance on the legal supervision mechanism of civil litigation. At present, the Higher People's Court of Anhui Province has unilaterally issued two guiding documents on the working mechanism of civil protest retrial, one is about the adjustment of documents, and the other is the Interim Provisions on the Trial of Civil Protest Retrial Cases. These two guiding documents of the Provincial High Law are not conducive to the supervision of civil litigation by procuratorial organs, nor to the acceptance of supervision by people's courts, and should be jointly revised by procuratorial organs and judicial organs. 3 actively promote the exchange of prosecutors and judges in rotation and the system of attachment of legal scholars. The implementation of this system is conducive to prosecutors, judges and scholars to understand and think about the same problem from different angles, to have a considerable breadth and depth of understanding of the same problem, and to solve the problem fairly and reasonably. (The author is the Chief of Civil Affairs Section of Lieshan District Procuratorate, Huaibei City, Anhui Province)