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我国现行的民事行政检察制度是以对法院生效判决进行事后审查并对错误判决提起抗诉为监督方式。由于种种原因,民事行政检察工作的发展也可谓步履蹒跚,这其中有制度设置和法律规定不完善的原因,也有实践中的认识和民事行政检察干警的素质等问题。随着社会主义市场法制的不断完善和中外司法交流的不断扩大,如何评价和完善我国现有的民事行政抗诉机制,成为发展民事行政检察工作的关键。 一、对我国民事行政抗诉机制的历史考察 1949年建国之后,我国基本上是全面地移植和借鉴了前苏联的检察制度。按照苏联的法律观念,检察机关负有监督法律执行的职能。为了实现这一职能,它就必须参与到民事诉讼程序之中去。根据苏联法律的规定,检察机关参加民事诉讼,主要表现在它可以提起民事诉讼,也可以参与整个诉讼过程,并对它认为不公正的第一审法院判决提出抗议,要求上级法院重审。受苏联的影响,新中国初期的民事诉讼程序中,也规定了检察机关参与民事诉讼程序的方式。如《民事案件审判程序(草稿)》第1条就规定了检察机关可以提起诉讼;第50条、第55条规定了检察机关参与民事诉讼,在认为原审法院的判决不公正时,可以提出抗诉,要求上级法院重新审理。可见,当时的民事行政检察包括民事行政抗诉和提起公益诉讼两项职能。
The current civil administrative procuratorial system in our country is based on the review of the effective judgment of the court and the protest against the wrong verdicts. Due to various reasons, the development of civil administration procuratorial work has also faltered. Among them, there are some reasons why the system is set up and the laws are not perfect, but also some problems in practice, such as cognition and quality of the civil administration procuratorial police. With the continuous improvement of the legal system of the socialist market and the continuous expansion of judicial exchanges both at home and abroad, how to evaluate and improve the existing civil administrative protest mechanism in our country has become the key to the development of civil administrative procuratorial work. I. Historical Investigation of the System of Civil Administrative Anti-Appeal in Our Country After the founding of 1949 in 1949, our country basically transplanted and borrowed the procuratorial system of the former Soviet Union. In accordance with the legal concept of the Soviet Union, the procuratorial organs have the function of supervising law enforcement. In order to realize this function, it must participate in the civil procedure. According to the provisions of the Soviet law, procuratorial organs to participate in civil proceedings, mainly in that it can bring a civil lawsuit, you can also participate in the entire process of litigation, and it considers the injustice of the first instance court protests, requiring higher courts to retrial. Influenced by the Soviet Union, in the early civil procedure in New China, the way in which procuratorial organs participated in civil proceedings was also stipulated. For example, Article 1 of the Civil Procedure Trial (Draft) stipulates that a procuratorial organ may institute a lawsuit. Article 50, Article 55, provides that a prosecutorial organ may participate in a civil lawsuit and may file a protest if it considers the judgment of the trial court unfair , Asking the higher court to retrial. Visible, then the civil administrative procuratorial includes civil administrative protest and filed public interest litigation two functions.