论我国公益诉讼激励机制之构建

目前,虽然我国涌现了大量的涉及公益诉讼的案件,但是立法上并无公益诉讼的规定,而且实践中也存在诸多问题,表现在这些方面：公民、法人或其他组织无法或不愿意提起诉讼；法院以各种理由不予受理、驳回起诉或判决原告败诉；受害者虽然胜诉,但未达到预期的维护公益的效果。究其原因,既有传统的当事人适格理论的障碍,又有传统文化、安全、成本等因素的影响。笔者构建的公益诉讼激励机制提出从立法上应完善当事人制度、对原告进行奖励、建立律师胜诉取酬制和惩罚赔偿,以全方面激发民众提起公益诉讼。

The Construltion of the Incentive Public Interest Litigation

At present,although in our country many cases of public interest litiga -tion have emerged,it has no provision regarding public interest litigation.There are many problems displayed in these aspects:the civics are unable or are not willing to file the lawsuit.The court does accept the case give by all kinds of reason,or rejects the prosecution,or decides the plaintiff to lose a lawsuit.Sometimes although the victim wins,but has not achieved the anticipated maintenance public interest the effect.The reasons are that the elements including traditional standard litigant theory, and traditional culture,security,cost influence.The mechanism that stimulate the civics to file the public interest litigation should consummate the litigant system from the legislation and other ways,such as to reward to the plaintiff and to establish paid system of winning lawyers and penalty compensation.