Procuratorate Public Interest Litigation Pilot Sites

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In accordance with the mandate of the Fourth Plenum Decision [Section IV.2], China is exploring having the procuratorate initiate public interest litigation in accordance with a new authorization by the National People’s Congress explained by Supreme People’s Procuratorate Chief Procurator, Cao Jianming.

Chinese procuratorates have always had powers of legal supervision, which generally involves conducting criminal prosecutions, investigating misconduct in office by state employees and approving of arrests by police, but also includes reviewing whether court proceedings conform with the law.

Initiating public prosecutions is a new extension of this authority, allowing the procuratorate to file suit on behalf of the public good, and has generally been discussed in the areas of environmental protection and consumer protections. Earlier this year, the Supreme People’s court also released an interpretation clarifying standing and procedures for civil cases of environment public interest litigation, by which a limited set of environmental organizations may raise public interest lawsuits even if not directly affected, in accordance with the Environmental Protection Law as well as by the procuratorate

It’s great to have lawsuits filed on behalf of the public interest, rather than just to address the harm to a specific party or parties. This gives the courts a bigger role in addressing issues that concern all of society, potentially raising their credibility and impact. Procuratorates using the courts for administrative public interest litigation,brings part of their supervision of administrative departments into the courts even when a crime is not committed.
Having the procuratorate act as the primary ‘public interest litigators’, instead of say civil society organizations litigating on behalf of concerned membership etc, seems less great, as it perpetuates the concept of the government/Party as the only body representing the people. We think of public interest litigation as the people using the courts to promote social change and protect their rights, and this isn’t that– it is litigation for the public interest and on behalf of the public, but not necessarily by the public.
The Environmental Protection Law does allow for civil public interest organizations to be initiated by a limited class of civil society organizations, and the pilot plan shows a preference for those groups filing suit over the procuratorate. Many of the organizations eligible to initiate such litigation, however, are quasi-governmental themselves- and it remains to see how it will all play out.

 

The new public interest litigation pilot projects will proceed in 13 provincial level jurisdictions for 2 years, including Inner Mongolia, Jilin, Jiangsu, Anhui, Fujian, Shandong, Hubei, Guangdong, Guizhou, Yunnan, Shaanxi, Gansu.

  • The pilots will include administrative (against government organs and departments, or units authorized by them, that act wrongfully or fail to perform duties) and civil (against citizens, legal persons and other organizations) public interest litigation.
  • There is no clear legislative basis for such public interest litigation by the procuratorate, so pilots are proceeding under authorization of the NPC.

Subject Areas

  • Civil law subject areas to be addressed include pollution, food safety, and other harms to public interest (large scale consumer protection cases, on the list authorized as public interest litigation in Article 55 of the Civil Procedure Law, and mentioned in the 4th plenum, was not mentioned)
  • Administrative public interest litigation includes ecological environment and resources protection, the protection of state-owned assets, state-owned land use rights.

Procedures:

  • A new title of ‘public interest litigant’ will designate the procuratorate in such cases, to highlight the unique role in these cases.
  • 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.
  • At trial, the procuratorate may seek remedies in civil cases such as stopping the harm, eliminating obstacles, removing hazards, restoring original conditions, making compensation and formal apologies. In administrative cases, the procuratorate may seek to have unlawful actions annulled, an order that performance be done within a fixed time period, or a determination that conduct is null or unlawful.

The Supreme People’s Procuratorate and Supreme People’s Court will monitor the pilots together, and report issues that arise to the National People’s congress.

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