Research on the Development of Public Interest Litigation Norms for the Protection of Minors and Prosecutors

2023-04-06

Article 106 of the Law on the Protection of Minors endows procuratorial organs with the responsibility of being "national guardians". In practice, the protection of minors in procuratorial public interest litigation work has not started yet, and there are still problems such as insufficient legal and policy regulations, lack of procedural settings, and virtual tracking methods for public interest protection. Exploring the standardized development of procuratorial public interest litigation for the protection of minors should be carried out within the framework of tracing governance, through case handling to promote the resolution of common social governance issues behind it, and through joint efforts from multiple levels and departments, eliminate the risks and hidden dangers in the protection of minors' public interest. 1、 The Practical Dilemma of Prosecutorial Public Interest Litigation for the Protection of Minors: The relevant system of public interest litigation for the protection of minors urgently needs to be improved. In recent years, due to the lack of specific regulations targeting the characteristics of public interest litigation for minors, the practice of handling cases in this field often lacks systematic and targeted theoretical guidance, and new types and fields of cases are classified as "equal" outside the field, regulated by basic clauses, As a result, there is a tendency of pan abstraction in the determination of public interests by the procuratorial organ in the specific handling of cases - there are disputes about how to determine the boundary of national public power protection invading the scope of private rights, and the lack of legal space leads to the realistic dilemma of obstructing the handling of such cases; In terms of the main responsibilities and obligations of case handling, the implementation of pre litigation procuratorial recommendations in public interest litigation lacks rigid constraints, and the protection effect of minors' public interests cannot be effectively consolidated. At the same time, the procuratorial organs and relevant organizations have not yet formed a long-term linkage mechanism in tracing and governing the public interests of minors. Therefore, it is imperative to make up for the institutional gaps in legislation and practice. The sources of case clues have not been interconnected through multiple channels. The clues to the protection of minors in procuratorial public interest litigation cases often rely on the procuratorial organs' discovery in handling other types of cases, and this "case in case" model is the main source of clues to the prosecution of public interest litigation cases. However, in general cases handled by other departments, there are still potential unexplored public interest litigation clues that cannot be effectively discovered and excavated, and there is a "vacuum zone" of case clues. At the same time, there is a lack of effective cooperation between the non prosecution department, minors' social organizations, government functional departments, and other relevant departments in sharing information on case leads, which also leads to the problem of a single source of case leads. The supporting guarantee mechanism is not yet sound. In the national procuratorial business application system, there is no type of public interest litigation case that has not been inspected yet, and in practice, only this type of case can be entered into public interest litigation cases for processing. At the same time, due to the fact that many grassroots procuratorates have not established separate departments or dedicated teams for handling cases without inspection in practice, there is a situation of cross departmental case handling. Case handlers need to bear a large amount of additional work, and the workload is not effectively reflected in the performance evaluation system. In addition, there is a significant gap in the handling concepts and models of procuratorates in different regions, and the problem of uneven and inconsistent development of public interest litigation without prosecution is still very prominent. The tracking and governance measures need to be improved. At present, in the handling of administrative public interest litigation cases for the protection of minors, the receipt of rectification replies from relevant administrative agencies is often regarded as the completion of the case. The relevant tracking and supervision system is not sound, and there is a lack of supervision methods and measures

Edit:Ying Ying    Responsible editor:Shen Chen

Source:jcrb.com

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