We will improve legislation, standardize procedures and do a good job in civil prosecution and reconciliation


Civil procuratorial reconciliation, as an innovative way of procuratorial supervision, plays an important role in resolving conflicts and disputes, maintaining social stability and judicial authority.However, because the civil procuratorial reconciliation work is still in the exploratory stage, there are gaps in the legislative level and the scope of application is not clear.Therefore, it is urgent to further strengthen the research on related issues, in order to benefit the legislation and judicial practice of civil procuratorial reconciliation system.From the perspective of theory and practice, the practical dilemma faced by civil procuratorial reconciliation is highlighted in three aspects: first, there is a gap in the legislative level.At the legal level, there is no provision for civil prosecutorial reconciliation, which makes the system lack legal support.Although article 51 of the Rules of the People’s Procuratorates on Civil Procedure Supervision stipulates that “in the process of handling civil procedure supervision cases, the people’s Procuratorates may guide the parties to reconcile themselves if they have the desire to do so”;Article 73 provides that “the people’s Procuratorate shall terminate the investigation under any of the following circumstances:…The applicant waives its right to apply for supervision in the settlement agreement reached with other parties, and does not harm the interests of the state, social public interests or the lawful rights and interests of others;…”However, the above provisions only describe the civil procuratorial reconciliation abstractly, and do not specify the specific operation process, applicable procedure and legal consequences, which is not conducive to the standard application of civil procuratorial reconciliation in practice.Secondly, the scope of application is not clear.In judicial practice, there are many disputes about which supervision cases can be applied to civil procuratorial reconciliation. Specifically, firstly, some people believe that its application scope includes cases where there is no obvious error in the original judgment, but both parties are relatives or neighbors.Because such cases contain worldly wisdom and permeate social ethics, if mechanically judicial and case-by-case handling is not conducive to resolving conflicts and disputes, it may lead to new conflicts.If civil prosecutorial reconciliation is applied, it can not only ease the trauma brought by litigation, but also facilitate the continuation of kinship and friendship.Secondly, it is believed that the scope of application includes the cases where there is no obvious error in the original judgment, but the case is complicated, the facts are difficult to find out, and the object of contention of the litigant belongs to the problems left over from history.With the development and change of society, some laws and policies involved in such cases have changed to varying degrees, and such changes often involve multiple government departments. At this time, the application of civil procuratorial reconciliation can balance the interests of both parties and resolve conflicts to the greatest extent.Third, there are also views that the scope of application of civil prosecutorial reconciliation includes cases involving group interests, if improperly handled, it is easy to intensify contradictions and cause public events;The cases involving the effective judgment of the original trial is indeed wrong and meet the conditions for protest, but the parties can reach a settlement voluntarily, and the cases that are difficult to be reversed through protest or retrial.Thirdly, the effectiveness of civil procuratorial reconciliation agreement is not clear.The civil conciliation agreement signed by the parties under the auspices and guidance of the procuratorial organ is different from the civil conciliation agreement signed under the auspices of the court. The civil conciliation document of the court has the effect of execution, but the effect of the civil procuratorial conciliation agreement is difficult to be determined.In addition, when there are flaws in the civil procuratorial reconciliation procedure or agreement, it is not clear how the litigants in the case should remedy, so they can only rely on mutual trust.If the litigant goes back on his word, the judicial organ cannot investigate his legal responsibility, which not only affects the litigant’s trust in the civil procuratorial work, but also may lead to new conflicts and disputes.Facing the difficulties of civil procuratorial reconciliation, how to improve it?The author suggests to make efforts from the following aspects.First, improve legal provisions to clarify the status, scope of application and validity of civil prosecutorial conciliation.First, clarify the status of civil procuratorial reconciliation.Civil procuratorial reconciliation is a beneficial supplement to the supervision means such as protest and procuratorial suggestion, and plays a huge role in resolving social contradictions and promoting social harmony and stability.In civil procuratorial reconciliation, the procuratorial organ is not only the legal supervisor, but also acts as the intermediary to facilitate the voluntary reconciliation between the two parties.It should be noted that the position of the prosecution should be neutral in the reconciliation process.In other words, the procuratorial organ should not lead the civil procuratorial reconciliation work, only when the civil supervision cases meet the conditions of reconciliation, one or both parties take the initiative to the procuratorial organ to apply for reconciliation, on the premise of respecting the will of both parties, the procuratorial organ will participate in building a platform, and act as an intermediary to facilitate the reconciliation between the two parties.The second is to clarify the scope of application of civil procuratorial reconciliation.There are mainly the following types of cases in which the parties apply to the procuratorial organs for supervision: first, the effective judgment of the original trial clearly ascertained the facts, correctly applied the law, and was not obviously improper;Second, the effective judgment of the original trial is defective, but it does not meet the conditions of protest;Third, the effective judgment of the original trial is indeed wrong, in line with the conditions of protest.For the first type, it is not appropriate for the procuratorial organs to actively intervene in the reconciliation work, because civil prosecutorial reconciliation at this time will damage the judicial authority.Even if both parties take the initiative to request reconciliation, the procuratorial organ should not participate in, but should interpret the law to reason, persuade the applicant to give up the case or guide the parties to the court for executive reconciliation, so as to realize the settlement of the case.In the second category, if the two parties are willing to reconcile, the prosecution should actively apply the prosecution reconciliation.This is not only conducive to resolving conflicts and disputes, but also can save judicial resources.The third category should be discussed in different cases.If the amount of the subject is small, the impact is not big and involves the parties’ private rights disposal, then civil procuratorial reconciliation can be carried out according to the parties’ will;If there is a serious mistake in the determination of facts, a mistake in the definition of laws, or a violation of law or a dereliction of duty by judges in the original judgment, the procuratorial organ should supervise it according to law, because civil procuratorial reconciliation should not be applied to matters involving public power.The third is to clarify the effectiveness of the civil procuratorial reconciliation agreement.The civil procuratorial conciliation agreement is the core of the civil procuratorial conciliation system and its effectiveness directly affects the right relief procedure when the parties do not perform the conciliation agreement.Therefore, it is necessary for the law to clarify the validity of the civil procuratorial settlement agreement.Specifically, it should clearly stipulate how to remedy the legal rights of the other party when one party fails to perform the settlement agreement.It should be clearly stipulated that in cases where the effective judgment of the original trial was flawed but did not meet the conditions for protest, and where the parties did not perform the civil procuratorial reconciliation agreement reached and applied to the procuratorial organs for supervision, the procuratorial organs would no longer accept the case;It shall clearly stipulate that in cases where there is a mistake in the effective judgment of the original trial and the conditions for protest are met, if the civil procuratorial conciliation procedure is applied, but the parties fail to perform the conciliation agreement.At this time, the procuratorial organ shall resume the examination procedure of the original appeal case and protest the appeal according to law.Second, standardize the initiation procedure of civil procuratorial reconciliation.One is program opening.For the civil supervision cases in which the parties make conciliation intention to the procuratorial organ, if both parties agree to conciliation through consultation, the civil procuratorial reconciliation can be started in the whole process of the procuratorial organ’s examination and handling of the case;If only one party is willing to reconcile, then the procuratorial organ should communicate with the other party, hold public hearings when necessary, fully listen to the opinions of the parties involved in the case, remove each other’s doubts and reduce antagonism.For civil supervision cases in which the procuratorial organ can apply conciliation, the procuratorial organ may, after preliminary examination and judgment on the facts, evidence and application of law, put forward the suggestion that the case is suitable for conciliation, but the final start of the civil procuratorial conciliation procedure needs to seek the consent of both parties.The second is to reach a settlement agreement.To some extent, civil procuratorial reconciliation is the process that procuratorial organs promote the parties to reach a reconciliation agreement.Procurators should be good at integrating resources, explaining the law and reasoning with the parties, helping and guiding them to correctly analyze the case and facilitate reconciliation.For both the parties reach a settlement in the end, the procuratorial organ to review, review the content mainly includes: the agreement is in violation of the provisions of the laws and administrative regulations of mandatory, whether collusion harm the state interests, public interests or the lawful rights and interests of others, have no legal forms cover for illegal purposes, and so on.In addition, because the content of the civil procuratorial reconciliation agreement may be inconsistent with the effective judgment of the original trial, the procuratorial organ should inform the original trial court when applying the civil procuratorial reconciliation procedure to handle the supervision case, and serve the civil procuratorial reconciliation agreement together.Third, judicial relief.Under normal circumstances, the civil procuratorial settlement agreement is reached by the two parties through consultation, and the parties will not conflict with the implementation of the agreement.Upon completion of the voluntary performance by both parties, the procuratorial organ shall terminate the examination of the case.However, if the other party fails to perform the agreement and the applicant requests a re-examination of the case for supervision originally applied for, the procuratorial organ shall resume the examination without delay and make a decision according to law.If the applicant reneges on the civil procuratorial reconciliation agreement, fails to perform the agreement and requests the procuratorial organ to resume the examination, the procuratorial organ shall terminate the examination generally, unless there is evidence to prove that the reconciliation agreement is invalid or revocable.Third, strengthen institutional construction and improve the supporting mechanisms for the civil procuratorial reconciliation system.First, we will establish a risk assessment and early warning mechanism for civil prosecutorial reconciliation.The civil legal relationship is complicated, if some civil supervision cases are not handled well, it is likely to make the parties to the case dissatisfied, make radical actions, and then haunt the lawsuit.Procuratorial organs apply civil procuratorial reconciliation procedure cases, can through the establishment of early warning system of risk assessment, to anticipation of risk cases, analysis of possible risk factors and possible adverse consequences, and make the corresponding risk early warning work plan, and will be the case, risk assessment and related report the relevant departments for the record, prepared.Second, we will improve the mechanism for assessing civil prosecutorial reconciliation.The handling of civil procuratorial and reconciliation supervision cases not only requires procurators to possess civil procuratorial professional skills, but also need to have enough sense of responsibility and give full play to their own subjective initiative.Therefore, it is necessary to perfect the civil procuratorial reconciliation assessment mechanism, bring the number of cases handled by the civil procuratorial reconciliation procedure into the assessment items, and encourage the procurators with appropriate incentive mechanism.In this way, it is conducive to stimulate the procuratorial staff to do a good job of civil procuratorial reconciliation enthusiasm, better play the role of civil procuratorial function, to maintain judicial justice, promote social harmony and stability to contribute to the wisdom and strength of procuratorial.(Author: Xiantao People’s Procuratorate, Hubei Province) Source: Procuratorial Daily

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