Last week, the 24th Session of the Standing Committee of the 12th National People’s Congress heard the Supreme People’s Procuratorate’s interim report on the reform pilots on people’s procuratorates initiating public interest litigation. The pilots were authorized by the NPCSC a little over a year ago in July 2015 for a period of two years. The following is an overview of the pilots, followed by a summary of the interim report.
- Subject areas. In the Authorization Decision, the NPCSC allows the procuratorates to initiate public interest litigation in areas including ecological, environmental, and resources protection, state-owned land-use right transfer, state-owned assets protection, and food and drug safety.
- Pilot sites. The pilots are taking place in the following 13 provincial administrative regions: Beijing, Inner Mongolia, Jilin, Jiangsu, Anhui, Fujian, Shandong, Hubei, Guangdong, Guizhou, Yunnan, Shaanxi, and Gansu.
- Types of litigation. Based on the identities of the defendants, two types of public interest litigation are differentiated, civil and administrative. Simply put, administrative public interest lawsuits are brought against government agencies and organizations statutorily authorized to carry out official duties, while civil lawsuits are brought against private entities.
- Procedure. The Supreme People’s Procuratorate and the Supreme People’s Court have each promulgated detailed measures on the procedures of initiating and hearing public interest litigation, respectively. As required by the Authorization Decision, pre-litigation procedures must precede the filing of lawsuits, as summarized below in a blog post by China Law Translate:
In part for purposes of judicial economy, pretrial procedures have been established. In civil cases, the procuratorate will encourage and support affected individuals and organizations to file suit before the procuratorate files a public interest suit. Before an administrative public interest lawsuit is filed, the procuratorate will first exercise its supervisory powers to issue a procuratorate opinion to the relevant government actors, urging them to make corrections or perform their duties. Should the harm to the public interest continue, and no citizen file a suit, the procuratorate will initiate public interest litigation.
Results of the Pilot Programs
Clues to Public Interest Cases
Discovering clues to potential public interest cases is the first step of eventually initiating public interest litigation. The following chart categorizes by subject area the 2982 clues to public interest cases that have been discovered by the procuratorates in the 13 regions as of September 2016.
It’s obvious that clues relating to environmental and resources protection make up the absolute majority (almost three-quarters) of all the clues discovered. The heavy concentration of clues found in this area is consistent with the emphasis placed on such area by the Project Plan for the pilots.
While not mentioned in the interim report, the Legal Daily has reported that among the 2982 clues, there is almost a 4-to-1 ratio between clues to administrative (2355, 79.0%) and to civil (627, 21.0%) public interest lawsuits.
These clues have resulted in 1710 public interest litigation cases that have been formally handled by the procuratorates.
Cases in Pre-Litigation Procedures
Of the 1710 cases, 1668 cases are still in or have been resolved through pre-litigation procedures.
- Administrative public interest litigation cases account for almost all (1591, 95.4%) of such cases.
- In 1348 of these cases, administrative agencies have replied to procuratorial suggestions that demand they either correct illegal actions or fulfill official duties. In another 243 cases, responses from administrative agencies are still pending, as the one-month reply period has yet to expire (see Article 40 of SPP’s Implementation Measures). Therefore, not considering the latter group of cases, every administrative agency has replied to the procuratorial suggestion it received.
- In 1214 cases (76.4%), administrative agencies have further corrected illegal actions or have carried out their duties.
- The rest 77 cases concern civil public interest litigation. After pre-litigation procedures, relevant social groups, after having been urged by procuratorates, filed public interest lawsuits in 17 cases. Presumably, social groups didn’t take action in the other 60 cases.
As the chart above indicates, environmental and resources protection is still the area with the most cases.
Public Interest Lawsuits Filed
In the remaining 42 cases of the 1710 cases handled by the procuratorates, they themselves have filed lawsuits in the courts.
The first administrative public interest lawsuit was brought by the people’s procuratorate for Qingyun County in Shandong Province against the County’s Environmental Protection Bureau for its failure to properly conduct oversight of a local company that has been emitting sewage into the environment. The court ruled for the procuratorate.
The first civil public interest lawsuit was filed in the Intermediate People’s Court of Changzhou Municipality in Jiangsu Province by Changzhou People’s Procuratorate. The Procuratorate sued two villagers for polluting the environment with hazardous waste, and later won the case.
By Type and Subject Area
Consistent with the ratio seen in earlier stages of the process, there have been:
- 28 (66.7%) administrative public interest lawsuits;
- 13 (31.0%) civil public interest lawsuits; and
- One administrative public interest lawsuit with attached civil public interest lawsuit.
The interim report didn’t provide a breakdown of these lawsuits into subject areas, but the Legal Daily reported that 83.8% of them were in the environmental and resources protection area.
As of September 2016, of these 42 lawsuits:
- The courts have announced first-instance verdicts in eight cases, all ruling in favor of the procuratorates;
- One civil public interest lawsuit ended in a settlement;
- The procuratorates withdrew three suits, because in one civil case, other competent entities joined the suit, and in two administrative cases, the administrative agencies sued made corrections.
By Administrative Region
Procuratorial organs in each of the 13 pilot administrative regions have already filed public interest lawsuits. The following are visualizations of the data provided by the Legal Daily, in the form of a bar graph and a map.
To recap the important numbers mentioned above: From 2982 clues to potential public interest litigation cases, 1710 have been formally handled as public interest litigation cases. Of those 1710 cases, 1668 are still in or have been resolved through pre-litigation procedures. Lawsuits have been filed in the rest 42 cases, and verdicts have been reached in only eight (as of September 2016).
The SPP identified the following problems currently faced by the pilots:
- Work on the pilot hasn’t been carried out evenly (see the map above). Certain procuratorates haven’t fully understood the importance or urgency of the pilot programs.
- Theoretical research on public interest litigation system has been unthorough and inadequate—for example, the research on the procuratorates’ litigation roles in public interest litigation.
- Many procuratorial personnel hasn’t fully adjusted to handling public interest litigation cases, and the abilities of some (e.g., to argue in court) need improvement.
- Supporting mechanisms are lacking, such as those for appraising public interest damage.
- Some local administrative agencies don’t cooperate well.
Next Steps and Suggestions
The SPP proposed measures to tackle each of the problems, which we won’t repeat here.
In the latter half of the pilots, the SPP indicated that the procuratorates will place additional focus on public interest cases concerning soil pollution and violations of consumer rights.
It suggested that the NPCSC conduct special inspections of the reform pilots. Two others suggestions were seemingly also directed to the NPCSC: that it conduct research and provide guidance on questions concerning the application of law that have emerged in the course of the pilots; and that it timely amend laws such as the Civil Procedure Law and the Administrative Litigation Law to create a legal system of procuratorates initiating public interest litigation.