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Title: The Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Regarding the Application of Law in Public Interest Litigation by the Procuratorate Promulgating Entities:The Supreme People's Court, The Supreme People's Procuratorate Reference number: Promulgation Date: 2018-2-23 Expiration date: Source of text: http://news.jcrb.com/jszx/201803/t20180302_1845170.html
Article 1: This interpretation is drafted so as to correctly apply the "Civil Procedure Law of the People's Republic of China" and the "Administrative Litigation Law of the People's Republic of China" provisions regarding public interest litigation initiated by the people's procuratorate, combining them with actual trial and procuratorate work conditions.
Article 2: The primary tasks of people's courts and people's procuratorate handling public interest litigation cases are giving full play to the functions of judicial adjudication and legal supervision, maintaining the authority of the Constitution and laws, maintaining social fairness and justice, preserving the national interests and societal public interest, to urge appropriate entities to exercise public interest litigation rights, promote administration in accordance with law and strict law enforcement.
Article 3: People's courts and people's procuratorates handling public interest litigation cases shall abide by the provisions of the Constitution and laws, abide by the principles of the litigation system, and follow the rules for operation of adjudication and procuratorial power.
Article 4: People's procuratorates initiating public interest litigation as a public interest litigant, are to enjoy procedural rights in accordance with the Civil Procedure Law and Administrative Litigation Law, and perform corresponding procedural obligations, except where laws or judicial interpretations provide otherwise.
Article 5: First-instance civil public interest litigation cases raised by municipal (division, prefecture) people's procuratorates are within the jurisdiction of the Intermediate People’s Court for the area where the infringing conduct occurred or where the defendant resides.
First-instance public interest administrative litigation cases raised by the basic level people's procuratorates are within the jurisdiction of the basic level people's court for the area of the administrative organ subject to the litigation.
Article 6: People's Procuratorates handling public interest litigation cases, may collect evidence materials from relevant administrative organs as well as other organizations and citizens, and the relevant administrative organs, organizations or citizens shall cooperate; and where it is necessary to employ measures for preservation of evidence, it is to be handled in accordance with the relevant provisions of the Civil Procedure Law and Administrative Litigation Law.
Article 7: Where people's courts hear first-instance public interest litigation cases initiated by people's procuratorates, the people's assessor system may be applied.
Article 8: In civil public interest litigation cases initiated by the people's procuratorates where people's courts hold in-court proceedings, they shall serve notice to appear in court on the people's procuratorate three days before beginning court proceedings.
The people's procuratorates shall dispatch personnel to appear in court, and shall submit a notice of personnel appearing to the people's court within three days of having received the people's courts' notice to appear in court. The notice of personnel appearing shall clearly indicate the names of the personnel appearing in court, their legal position, and the specific duties they will appear in court to perform.
Article 9: Procuratorate personnel appearing in court perform the following duties:
(1) Reading out the complaint for the public interest litigation;
(2) Presenting and explaining evidence collected by the people's procuratorate through its investigation, and debating related evidence;
(3) Participating in court investigations, conducting debate, and making comments;
(4) Engaging in other litigation activities in accordance with the law.
Article 10: Where the people's procuratorate is dissatisfied with the people's court's first-instance judgment or ruling , it may raise an appeal to the people's court at the level above.
Article 11: In second-instance trials heard by the people's courts, the people's procuratorate that initiated the public interest litigation is to appoint personnel to appear in court and the people's procuratorate at the level above may also appoint personnel to participate.
Article 12: Where a judgment or ruling has taken legal effect in public interest litigation cases initiated by the people's procuratorate, and the defendant does not perform, the people's procuratorate shall transfer it for enforcement.
Article 13: Where, in the course of performing their duties, people's procuratorates discover acts harmful to the societal public interest such as destruction of the ecological environment and resource protections, or harms to large numbers of consumers' lawful rights and interests in areas such as food and drug safety, and will initiate public interest litigation, they shall make a public announcement in accordance with law, and the period for the announcement is to be 30 days.
When the announcement period is completed, and the legally-designated organ and relevant organs have not initiated litigation, the people's procuratorates may initiate litigation in the people's courts.
Article 14: People's procuratorates initiating civil public interest litigation shall submit the following materials:
(1) A civil public interest litigation complaint, and copies corresponding to the number of defendants;
(2) Preliminary evidence materials showing that the defendants' actions have harmed societal public interest;
(3) Proofs that the procuratorates have already performed notice procedures.
Article 15: Where people's procuratorates initiate civil public interest litigation on the basis of the Civil Procedure Law article 55, paragraph 2, that meets the requirements of Civil Procedure Law article 119 items 2, 3, or 4, and this Interpretation for initiating litigation, the people's courts shall register and file the case.
Article 16: Where in a case of civil public interest litigation initiated by the people's procuratorate, the defendant submits litigation demands in the form of a counterclaim, the people's courts are not to accept it.
Article 17: After a people's court accepts a civil public interest litigation case initiated by a people's procuratorate, it shall serve a copy of the complaint on the defendant within 5 days of filing the case.
Where people's procuratorates have already performed pretrial announcement requirements, the people's courts are not to make announcements again after accepting the case.
Article 18: Where people's courts find that the litigation demands submitted by the people's procuratorate are insufficient to protect the societal public interest, they may construe them so as to modify or add litigation demands such as to stop harms or restore original conditions.
Article 19: Where during the trial process for civil public interest litigation, the people's procuratorates' litigation demands are completely realized and they withdraw the litigation, the people's court should permit it.
Article 20: When people's procuratorates initiate criminal proceedings against criminal acts harmful to the societal public interest such as destruction of the ecological environment and resource protections, or harms to large numbers of consumers' lawful rights and interests in areas such as food and drug safety, they may jointly initiate attached civil public interest litigation in the people's courts, and the same first-instance trial organization in the people's court is to hear it.
The people's court hearing the criminal case has jurisdiction over civil public interest litigation raised by the people's procuratorate that is attached to the criminal case.
Article 21: Where people's procuratorates discover, in the course of performing their duties, that administrative organs responsible for supervision and management of areas such as ecological environment resource protection, food and drug safety, state-owned assets protection, and state-owned land use rights and transfers, have unlawfully exercised their authorities or failed to act, causing an infringement of the national and societal public interest, they shall submit a procuratorial recommendation to the administrative organs and urge them to perform their duties in accordance with law.
The administrative organs shall perform their duties in accordance with law within two months from the date of receiving the procuratorial recommendation and respond in writing to the people's procuratorate. In emergency situations such as where harms to the national interest or societal public interest continue to expand, the administrative organs shall respond in writing within 15 days.
Where administrative organs do not perform their duties in accordance with law, the people's procuratorate is to initiate litigation in the people's courts in accordance with law.
Article 22: People's procuratorates initiating administrative public interest litigation shall submit the following materials:
(1) An administrative public interest litigation complaint, and copies corresponding to the number of defendants;
(2) Evidence materials showing the defendants' violation in performance of duties or failure to act causing harm to national interests or the societal public interest;
(3) Evidence materials showing that the procuratorates already performed pre-litigation procedures and that the administrative organ still did not perform its duties in accordance with law or correct its unlawful conduct.
Article 23: Where people's procuratorates initiate administrative public interest litigation on the basis of the Administrative Litigation Law article 25, paragraph 4, that meets the requirements of Administrative Litigation Law article 49 items 2,3, or 4, and this Interpretation for initiating litigation, the people's courts shall register and file the case.
Article 24: Where in the course of hearing administrative public interest litigation, the defendant corrects their unlawful conduct or lawfully performs their duties, bringing about the complete realization of the people's procuratorate's litigation demands, and the people's procuratorate withdraws the litigation, the people's court shall rule to allow it; and where the people's procuratorate change the litigation demands, to demand that a confirmation that the original administrative act was illegal, the people's court shall make a judgment confirming illegality.
Article 25: The people's courts are to make administrative public interest litigation judgments on the following distinct situations:
(1) Where the administrative act subject to the litigation has any of the situations provided for in Articles 74 or 75 of the Administrative Litigation Law, a judgment is to be made confirming that it is illegal or invalid, and a judgment ordering the administrative organ to take remedial measures may be made at the same time;
(2) Where the administrative act subject to the litigation has any of the situations provided for in Article 70 of the Administrative Litigation Law, a judgment is to be made revoking or partially revoking it, and a judgment for the administrative organ to take new administrative action may be made;
(3) Where the respondent administrative organ has not perform its legally-prescribed duties, a judgment is to be made for it to perform within a certain period of time;
(4) Where an administrative punishment given by the administrative organ subject to litigation is manifestly improper, or there is error in other administrative acts involving confirmation or determination of amounts of money, make a judgment to modify it;
(5) Where evidence on the administrative acts subject to the litigation is conclusion, the laws or regulations applied are correct, legally-prescribed procedures are complied with, authority was not exceeded, there is no abuse of authority, and there is no clear impropriety; or where the people's procuratorate's grounds for demanding administrative organs perform legally-prescribed duties are not sustained, a judgment is to be made to reject the litigation demands.
People's courts may inform the people's government to which the administrative organ subject to the litigation belongs, or other relevant functional departments, of the judgment outcomes.
Article 26: For matters where there are no provisions in this Interpretation, apply the provisions of the Civil Procedure Law, the Administrative Litigation Law and relevant judicial interpretations, respectively.
Article 27: This Interpretation takes effect on March 2, 2018.
Where judicial interpretations and normative documents previously issued by the Supreme People's Court and Supreme People's Procuratorate are inconsistent with this Interpretation, this Interpretation is controlling.