340 total views, 4 views today
Title: Project Plan for Reform Pilots on Procuratorates Initiating Public Interest Litigation
Promulgating Entities:Supreme People's Procuratorate
Promulgation Date: 2015-7-2
Source of text: http://news.xinhuanet.com/legal/2015-07/02/c_1115792543.htm
Project Plan for Reform Pilots on Procuratorates Initiating Public Interest Litigation
In order to implement the reform requirement of the Fourth Plenary Session of the 18th Party Central Committee on exploring the establishment of a system where procuratorial organs initiate public interest litigations, the following Plan is proposed on the reform pilot of procuratorial organs initiating public interest litigations:
I. Objectives and Principles
In accordance with the reforms and deployments of the Decision of the Central Committee on Several Major Issues Concerning Comprehensively Advancing Ruling the Country According to Law, actively explore the establishment of a system of procuratorial organs initiating public interest litigation, giving full play to procuratorial organs' function of legal supervision, so as to promote administration according to law and strict enforcement of the law, uphold the authority of the Constitution and laws, maintain social fairness and justice, and defend the public interest of the nation and society.
(1) Adhere to the correct direction of reform. Adhere to the organic unity of the party's leadership, the people as masters and governance in accordance with law, to development and improve the socialist procuratorial system with Chinese characteristics, unswervingly following the path of Socialism with Chinese characteristics.
(2) Have a basis in the function of legal supervision. Adhere to the position of prosecutorial functions; have a firm grasp of the requirements for initiating public interest litigation and its scope and procedures; strengthen the protection of the public interest, and also strictly regulate the exercise of prosecutorial power.
(3) Effectively protect public interest. Promptly initiate public interest civil and administrative litigation addressing violations of national and societal public interest directed at the ecological environment and resource protection, strengthening protections of the national and societal public interest.
(4) Orderly proceed in strict accordance with law. On the basis of the relevant provisions of laws such as the Civil Procedure Law, Administrative Litigation Law, and the Standing Committee of the N.P.C.'s Authorization Decision, ensure that the reform pilot is conducted within the framework of laws and the scope of the authorization, to safeguard the uniformity and the authority of the legal system.
II. Principal Content
(1) Initiating Civil Public Interest Litigations
1. Scope of the Pilot Plan. Procuratorates that, in the course of performing their duties, discover conducts harming societal public interest such as polluting the environment or violating the the lawful rights of many consumers in the areas of food or drug safety, may initiate civil public interest litigation in the people's courts where there is no competent entity or where the competent entity does not initiate litigation.
2. Litigation Participants. Procuratorates initiating civil public interest litigation have the status of public interest litigants. The defendants in civil public interest litigation are citizens, legal persons or other organizations that have carried out conduct harmful to the societal public interest. The defendant has no right to a counterclaim where the procuratorate initiates public interest civil litigation.
3. Pretrial Procedures. Before procuratorial organs file a civil public interest lawsuit, they shall, according to law, urge or support authorities specified by law or relevant organizations to file a civil public interest lawsuit. The institution prescribed by law or the relevant organization receiving an opinion of encouragement or support to bring suit shall handle it according to law within one month, and submit a written reply to the procuratorial organ in a timely manner.
4. Initiating Litigation. After completing the pre-litigation procedures, if the authorities prescribed by law and relevant organizations have not filed a civil public interest lawsuit, and society's public interest is still being violated, the procuratorial organ may file a civil public interest lawsuit. When initiating civil public interest litigations, the procuratorates shall have specific defendants, litigation demands, and preliminary evidence that societal public interest is being harmed, and shall make public interest litigation bills of complaint.
5. Litigation Demands. Procuratorates may submit litigation demands to the people's court such as requesting that the defendant stop violations, eliminate obstacles, remove harms, restore original conditions, make compensation for harms, or make formal apologies.
(2) Initiating Administrative Public Interest Litigation
1. Scope of the Pilot Plan. Where procuratorial organs discover, in the course of carrying out their duties, that administrative organs responsible for areas such as supervision and management of ecological, environmental and resource protection, 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 social public interest, and because citizens, legal persons or other organizations are not directly harmed they do not or cannot initiate litigation, the procuratorial organ may file an administrative public interest lawsuit in the people's court. During the pilots, the focus is on initiating public interest litigation cases in the areas f ecological environmental and resource protection
2. Litigation Participants. Procuratorates initiating public interest administrative litigation have the status of public interest litigants. The defendants in administrative public interest litigation are administrative departments; as well as organizations authorized by laws, regulations or rules; that exercise powers unlawfully, or fail to act, in areas such as ecological and environmental protection, protection of State assets, and transfer of state-owned land usage rights.
3. Pretrial Procedures. Before initiating public interest litigation, procuratorates shall first submit a procuratorate opinion to the relevant administrative department, urging it to correct unlawful administrative conduct or perform its duties in accordance with law. The administrative organ shall take care of it in accordance with law with one month of receiving the written procuratorate opinion, and promptly report back in writing to the procuratorate on the handling.
4. Initiating Litigation. After pre-trial procedures, if the administrative organs still refuse to correct illegal acts or to carry out legally prescribed duties, and the State's and the society's public interest is still being violated, the procuratorates may initiate administrative public interest litigations. When initiating administrative public interest litigations, the procuratorates shall have specific defendants, litigation demands, and preliminary evidence that the State's and the society's public interest is being harmed, and shall make public interest litigation bills of complaint.
5. Litigation Demands. Procuratorates may submit litigation demands to the people's court such as for annullment or partial annulment of unlawful administrative conduct, performance of administrative duties within a set time period, or confirming the illegality or invalidity of administrative conduct.
(3) Other Matters
1. During the pilot period, where local people's procuratorates decide to initiate public interest litigation in the people's courts, they shall first first report up through the levels to the Supreme People's Procuratorate for review and approval.
2. Procuratorates raising public interest litigation are exempted from paying litigation fees.
3. In initiating public interest litigation, where there are no relevant provisions in the Pilot Plan, apply provisions of the Civil Procedure Law, Administrative Procedure Law, and relevant judicial interpretations.
III. Implementation of the Plan
(1) Authorization by the legislature. Submit to the Standing Committee of the National People's Congress for authorization in June 2015, and conduct reform pilot starting in July 2015; the duration of pilot is two years.
(2) Actively carry out pilot. In July 2015, formulate and publish pilot Implementation Measureson the basis of the N.P.C. Standing Committee Authorization and the Reform Pilot Plan, and select the 13 provinces, autonomous regions, and directly-controlled municipalities of Beijing, Inner Mongolia, Jilin, Jiangsu, Anhui, Fujian, Shandong, Hubei, Guangdong, Guizhou, Yunnan, Shaanxin, and Gansu to launch the pilot
(3) Promote revision and improvement of relevant laws. Promptly summarize the experience and the results of the pilot, and actively promote the revision and improvement of relevant laws.
IV. Work Requirements
First, adhere to the overall plan. Strengthen top-level design, establishing basic systems and regulation for procuratorates initiating public interest litigation , overall planning and a specific timetables and road maps. In accordance with the capacity for reproduction and spreading, pilot regions are encouraged to bring a pioneering spirit into play, and promote systems innovation.
Second, proceed actively but prudently. When exploring the establishment of a system where procuratorates initiate public interest litigations, promote actively and strengthen the guidance and the supervision of the pilot programs, as well as remain prudent and careful and strictly follow procedures so as to ensure the unity of legal and social effects. Mature experience should gradually take form, and then again promote legislative improvements.
Third, strengthen coordination and cooperation. All pilot project units should strengthen reporting instructions, communication and coordination, actively striving to get the support of local party committees, people's congresses, governments and relevant departments, establishing mechanisms for coordination and cooperation with the people's courts, and jointly advancing the steady development of pilot project work.
Fourth, pay attention to publicity and guidance. Both promptly publicize positive experiences, good methods and achievements from the reform pilots, and also have a firm grasp on publicity tactics, strict publicity discipline and correct guidance of social expectations, so as to create a positive public opinion environment for the reform pilots.