论民事行政检察建议的适用现状及制度改革
发布时间：2018-12-10 19:57
【摘要】：本文尝试对民事行政检察建议的理论问题、现实中的存在形式及存在问题进行梳理,最后提出完善建议。本文认为民事行政检察建议采用广义的概念,包含书面提出的再审检察建议及其他检察建议,性质可以看作是类似行政法上的“行政指导”行为。从法的价值及国情和司法实践出发,民事行政检察监督应当将民事行政检察建议作为一种监督方式。民事行政检察建议虽然是事实行为,没有法定的约束力,但具有一定事实的强制力。民事行政检察建议的范围应具有广泛性,但是应限定在限定在民事审判和行政诉讼有关的当事人与事项。本文将民事行政检察建议具体形式归纳为诉前监督、诉中监督、执行监督和后续监督等几种方式。本文认为,民事行政检察建议在实践中的存在的问题是缺乏法律依据,检、法认识分歧、缺乏操作规则。具体的完善建议是积极提出立法建议,统一和规范再检察建议格式和内容,加强检法的沟通和协调。
[Abstract]:This paper tries to sort out the theoretical problems, the existing forms and the existing problems of the civil administrative procuratorial suggestions, and finally puts forward some suggestions for perfection. This article thinks that the civil administrative procuratorial proposal adopts the broad concept, including the written retrial procuratorial suggestion and other procuratorial suggestions, and the nature can be regarded as "administrative guidance" behavior similar to administrative law. Proceeding from the value of law, national conditions and judicial practice, civil administrative procuratorial supervision should regard civil administrative procuratorial suggestion as a way of supervision. Although the civil administrative procuratorial proposal is a factual act, it is not legally binding, but it has the enforcement power of certain facts. The scope of civil administrative procuratorial proposals should be extensive, but should be limited to the parties and matters related to civil trials and administrative proceedings. In this paper, the specific forms of civil administrative procuratorial suggestions are summarized as pre-lawsuit supervision, litigation supervision, executive supervision and follow-up supervision. This paper holds that the problems existing in the practice of civil administrative procuratorial proposals are lack of legal basis, lack of understanding of law and lack of operational rules. The concrete perfect suggestion is to put forward the legislation suggestion, unify and standardize the format and content of the re-procuratorial suggestion, strengthen the communication and coordination of the procuratorial law.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.3
本文编号：2371117
[Abstract]:This paper tries to sort out the theoretical problems, the existing forms and the existing problems of the civil administrative procuratorial suggestions, and finally puts forward some suggestions for perfection. This article thinks that the civil administrative procuratorial proposal adopts the broad concept, including the written retrial procuratorial suggestion and other procuratorial suggestions, and the nature can be regarded as "administrative guidance" behavior similar to administrative law. Proceeding from the value of law, national conditions and judicial practice, civil administrative procuratorial supervision should regard civil administrative procuratorial suggestion as a way of supervision. Although the civil administrative procuratorial proposal is a factual act, it is not legally binding, but it has the enforcement power of certain facts. The scope of civil administrative procuratorial proposals should be extensive, but should be limited to the parties and matters related to civil trials and administrative proceedings. In this paper, the specific forms of civil administrative procuratorial suggestions are summarized as pre-lawsuit supervision, litigation supervision, executive supervision and follow-up supervision. This paper holds that the problems existing in the practice of civil administrative procuratorial proposals are lack of legal basis, lack of understanding of law and lack of operational rules. The concrete perfect suggestion is to put forward the legislation suggestion, unify and standardize the format and content of the re-procuratorial suggestion, strengthen the communication and coordination of the procuratorial law.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.3
【引证文献】
相关硕士学位论文 前1条
1 王骁;论民事诉讼中的检察建议[D];华中师范大学;2013年
，本文编号：2371117
本文链接：https://www.wllwen.com/falvlunwen/gongjianfalunwen/2371117.html
