Implementation Measures For Pilots on People's Procuratorates Initiating Public Interest Litigation

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS --THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS.

Chapter I: Initiating Civil Public Interest Litigation

Chapter II: Initiating Public Interest Administrative Litigation

Chapter III: Other Provisions

Chapter IV: Supplemental Provisions

 

These Measures are formulated on the basis of the Decision of the NPC Standing Committee Authorizing the Supreme People's Procuratorate to Conduct Public Interest Litigation Pilots in Certain Regions and the Project Plan For Reform Pilots On Procuratorates Initiating Public Interest Litigation, combined with actual practice of the procuratorate, so as to strengthen the protection of the national and societal public interests, and to promote administration in accordance with law and the strict enforcement of law by the executive departments.

  Chapter I: Initiating Civil Public Interest Litigation

Article 1: People's procuratorates that discover acts harmful to the societal public interest while performing their duties, such as environmental pollution or violations of the the lawful rights of large numbers of consumers in the areas of food or drug safety, may initiate civil public interest litigation in the people's courts where there is no proper entity with standing or where entities with standing do not initiate litigation.

The duties of the people's procuratorate include investigating crimes of abuse of office, approving or deciding to conduct arrests, reviewing for prosecution, investigating accusations, overseeing lawsuits, and other functions.

Article 2: Where people's procuratorate initiate a civil public interest case, jurisdiction is generally with the people's procuratorate for the location where the tortious acts occurred, where the harmful outcomes of the tortious behavior occurred, or at the defendant's place of residence at the city (or prefecture, or sub-procuratorial) level.

Where people's procuratorates with jurisdiction cannot exercise jurisdiction due to special reasons, a higher-level procuratorate shall assign jurisdiction of the case to another procuratorate either in the same are or a different pilot region.

When a higher-level procuratorate finds it is truly necessary, it may handle cases in the jurisdiction of a lower-level procuratorate. When a lower-level procuratorate finds that a case needs to be handled by a higher-level procuratorate, it may request that the higher-level procuratorate handle it.

Where a procuratorate with jurisdiction finds that it is necessary for the civil public interest litigation case to be heard by a lower-level procuratorate, it shall request permission from the higher-level procuratorate.

Article 3: The civil and administrative procuratorate departments are responsible for handling civil public interest cases raised by the people's procuratorates.

Article 4: Every operational department of the people's procuratorates that, in the course of its duties, discovers leads that a case might be within the scope of civil public interest suits, it shall transfer the relevant materials to the civil administration procuratorate department.

Article 5: Where, upon investigation, it is found that conduct such as environmental pollution or violations of the lawful rights of a large number consumers in the fields of food or pharmaceuticals, and so forth, might have harmed the social public interest, a request shall be submitted to the chief procurator to approve the decision to file a case, and registration shall me made with the case management department.

Where a people's procuratorate decides to file a civil public interest case, it shall draft a "Case Filing Decision".

Article 6: People's procuratorates may employ the following measures to investigate and verify evidence related to the harmful consequences and relevant circumstances of unlawful conduct such as environmental pollution and violations of a large number of consumers' lawful rights and interests.

(1) Reading or reproducing relevant administrative enforcement file materials;

(2) Questioning persons such as the offenders, or witnesses;

(3) Collecting documentary evidence, physical evidence, audiovisual materials and other such evidence;

(4) Consult with specialized persons, relevant departments or industry associations etc. for their opinions on specialized questions;

(5) Commission an evaluation, an appraisal or an audit;

(6) Make inquests of physical evidence or locations;

(7) Other necessary investigative methods.

Investigations and verifications must not employ compulsory measures such as restricting physical liberty or sealing, seizing, or freezing assets.

Where people's procuratorates are verifying relevant situations, administrative organs and other relevant units and individuals shall cooperate.

Article 7: Where the civil administration departments procuratorates discover, in the course of handing a civil public interest case, leads that state personnel are suspected of bribery or corruption, neglecting their duties, or infringement upon others' rights and other such crimes of abuse of public office, they shall promptly transfer it to the department for crimes of abusing public office; and where they discovers other indications of criminal conduct, they shall promptly transfer them to the investigation supervision department.

Article 8: When a people's procuratorate concludes its investigation in a civil public interest lawsuit, the case-handling personnel shall draft a report of the investigatory conclusions. An investigatory conclusions report shall comprehensively, objectively and equitably state the facts of the case, and submit recommendations on the basis of law.

Article 9: The handling of civil public interest cases shall be upon collective discussion. Persons participating in the collective discussions shall express clear opinions and clearly explain their reasoning on the facts of the case, the applicable law, recomendations on how the case shall be handled, and so forth. The collective discussion opinion shall be formed on the basis of comprehensively and objectively summary of the discussed opinions.

The handling opinion formed by collective discussion is to be reported to the Chief Procurator for approval after the the responsible party for the civil administration procuratorial department has put forward a review opinion. Where the Chief Procurator finds it is necessary, they may submit it to the procuratorial committee for discussion and decision.

Article 10: For civil public interest lawsuits for which review has been concluded, people's procuratorates shall make the following decisions depending on the distinct situations:

(1) Conclude review;

(2) Lawfully urging or supporting the initiation of civil public interest litigation by institutions or relevant organizations provided for by law;

(3) Initiating Civil Public Interest Litigation.

Article 11: People's procuratorates handling civil public interest lawsuits by making a decision like that set forth in article 10(1) or 10(2) shall complete handling within 3 months of the date upon which they decided to file the case; and where the decision is like that set forth in article 10(3), the case shall be handled to its conclusion within 6 months of the date upon which it was decided to file the case. Where there are special circumstances requiring an extension, report to the chief procurator for approval.

Article 12: In any of the following circumstances, people's procuratorates shall conclude their review:

(1) Upon review, no circumstance exists in which the societal public interest is harmed and civil legal liability needs to be pursued;

(2) The circumstances harmful to the societal public interest have already been removed, before the institutions or relevant organizations provided for by law were urged or supported to lawfully initiate civil public interest litigation and the societal public interest has received effective relief;

(3) Other circumstances where review should be concluded. Where review is concluded, a "Decision to Conclude Review" shall be drafted.

Article 13: Before people's procuratorates raise civil public interest litigation, they shall perform the following litigation procedures:

(1) Lawfully urging institutions provided for by law to initiate civil public interest litigation;

(2) Recommending that relevant organizations in their jurisdictional area that meet the requirements of relevant laws, initiate civil public interest litigation. Where relevant organizations submit that they need people's procuratorates to support their lawsuits, [the people's procuratorates] may support them in initiating public interest litigation in accordance with relevant legal provisions.

The organs and relevant organizations provided by law that receive an opinion urging initiation of a lawsuit or a written procuratorial opinion, shall lawfully handle it within one month, and promptly submit a written reply on the situation to the people's procuratorate.

Article 14: Where upon completing pre-trial procedures, the organs provided for by law or other relevant organizations have not filed a civil public interest lawsuit, or there is no entity with standing to raise the lawsuit, and the societal public interest is still in a state of being violated, the people's procuratorates may file a civil public interest lawsuit.

Article 15: People's procuratorates initiate civil public interest litigation as 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.

Article 16: People's 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.

Article 17: People's procuratorates initiating civil public interest litigation shall submit the following materials:

(1) The civil public interest litigation bills of complaint [Complaints];

(2) Preliminary evidentiary materials showing that the defendants' actions have harmed societal public interest.

Article 18: The defendant has no right to a counterclaim where the people's procuratorates initiate public interest civil litigation.

Article 19: In initiating civil public interest litigation, people's procuratorates shall provide evidence to prove the facts based on which litigation claims are put forward or the which rebut defendant's views, and also the facts of carrying out pre-litigation procedures, except as otherwise provided by law.

Article 20: Where a judgment is made difficult to implement or causes other harms related to the social public interests, by the defendant's unilateral behavior or other reasons, the procuratorates may recommend that the people's court secure the defendants' assets, order the defendant to take certain acts, prohibit them from taking certain acts.

Where people's courts adopt measures to secure [defendant's property] on the basis of the procuratorate's recommendations, the procuratorate does not need to provide a guarantee.

Article 21: In civil public interest litigation cases brought by the People's Procuratorate where people's courts hold in-court proceedings, the Procuratorate shall appoint prosecutors to appear in court.

Article 22: The tasks of people's procurators appearing at court are:

(1) reading out the complaint of the civil public interest lawsuit;

(2) Presenting and explaining evidence verified by the procuratorate through its investigation, and debating related evidence;

(2) Participating in in-court investigation, debating and expressing opinions about appearances at court;

(4) Engaging in other litigation activities in accordance with the law.

Where procurators discover illegalities in the court hearings, they shall submit a Procuratorate Reccomendation in the name of the procuratorate, during a recess or after the court proceedings have concluded.

Article 23: In civil public interest litigation cases, the people's procuratorates may settle with the defendants, and the people's courts may mediate. Settlement agreements and mediation agreements must not harm the societal public interest.

Article 24: Where during the trial process for civil public interest litigation, the people's procuratorates' claims are completely realized, they may withdraw the suit.

Article 25: Local people's procuratorates of any level finding that the first-instance trial ruling or judgment of a people's court at the same level is truly in error, shall raise a prosecutorial counter-appeal to the people's court at the level above.

Article 26: Local people's procuratorates of all levels appealing first-instance trial judgments or rulings of people's courts at the same level that have not yet taken effect, shall submit the appeals complaint through the original people's court, and also send a copy to the people's procuratorate at the level above.

Where the people's procuratorate at the level above finds that the prosecutorial counter-appeal is improper, it may withdraw the counter-appeal at the people's court of the same level, and notify the lower-level people's procuratorate.

Article 27: In second-instance trial cases where the procuratorate submitted an appeal, or in appeals cases where the court decides to hold in court proceedings, the procuratorate of the same-level shall appoint personnel to appear at the second-instance court.

  Chapter II: Initiating Public Interest Administrative Litigation

Article 28: Where people's procuratorates 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 authority or failed to act, causing an infringement of the national or societal public interest; and that citizens, legal persons or other organizations do not or cannot initiate litigation because they are not directly harmed, the procuratorate may file an administrative public interest lawsuit in the people's court.

The duties of the people's procuratorate include investigating crimes of abuse of office, approving or deciding to conduct arrests, reviewing for prosecution, investigating accusations, overseeing lawsuits, and other functions.

Article 29: Where the People's Procuratorate files an administrative public interest litigation case, jurisdiction is generally with the basic level procuratorate for the area where the administrative organ that had the unlawful conduct or nonfeasance is located.

In cases where the administrative organ with unlawful conduct nonfeasance is a government at the county-level or above, jurisdiction is with the municipal (branch, prefecture) procuratorate.

Where people's procuratorates with jurisdiction cannot exercise jurisdiction due to special reasons, a higher-level procuratorate shall assign jurisdiction of the case to another procuratorate either in the same are or a different pilot region.

When a higher-level procuratorate finds it is truly necessary, it may handle cases in the jurisdiction of a lower-level procuratorate. When a lower-level procuratorate finds that a case needs to be handled by a higher-level procuratorate, it may request that the higher-level procuratorate handle it.

Article 30: The civil administration procuratorate departments are responsible for handling administrative public interest litigation raised by the people's procuratorates.

Article 31: When any procuratorate department, in the course of fulfilling its duties, discovers leads that might be within the scope of an administrative public interest litigation case, they shall forward such materials to the civil and administrative procuratorate department.

Article 32: If through investigation it is believed that an administrative agency with supervisory duties has unlawfully abused its authority, or not performed its duties, in the areas of ecological, environmental and natural resource protection, state-owned asset protection, or state-owned land use rights, causing harm to the national or societal public interests; it shall be reported to the chief procurator to approve a decision to file the case, and be registered with the case management department

Where people's procuratorates decide to file an administrative public litigation case, a "Case Filing Decision" shall be drafted.

Article 33: The People's Procuratorate may adopt any of the following methods to investigate and verify evidence and situations related to an administrative agency's unlawful exercise of authority or nonfeasance:

(1) read, access, duplicate administrative law enforcement files and materials;

(2) Make inquiries to the administrative agency's relevant employees as well as to the administrative counterparts stakeholders, witnesses, and so forth;

(3) Collecting documentary evidence, physical evidence, audiovisual materials and other such evidence;

(4) Consult with specialized persons, relevant departments or industry associations etc. for their opinions on specialized questions;

(5) Commission an evaluation, an appraisal or an audit;

(6) Make inquests of physical evidence or locations;

(7) Other necessary investigative methods.

Investigations and verifications must not employ compulsory measures such as restricting physical liberty or sealing, seizing, or freezing assets.

Where people's procuratorates are verifying relevant situations, administrative organs and other relevant units and individuals shall cooperate.

Article 34: If the civil and administrative investigations department, in the course of handling an administrative public interest litigation case, discovers a government official suspected of corruption, bribery, wrongful violation of rights, or any other clues of official job-related wrongful behavior, it shall timely forward such materials to the criminal investigation division; if they discover evidence of criminal behavior, then it shall timely forward such materials to the investigation supervision department.

Article 35: When the Procuratorate completes its investigation for a administrative public interest litigation case, the person undertaking the case shall draft an investigatory conclusion report. An investigatory conclusions report shall comprehensively, objectively and equitably state the facts of the case, and submit recommendations on the basis of law.

Article 36: Administrative public interest litigation cases shall be handled through collective discussion. Persons participating in the collective discussions shall express clear opinions and clearly explain their reasoning on the facts of the case, the applicable law, recomendations on how the case shall be handled, and so forth. The collective discussion opinion shall be formed on the basis of comprehensively and objectively summary of the discussed opinions.

The handling opinion formed by collective discussion is to be reported to the Chief Procurator for approval after the the responsible party for the civil administration procuratorial department has put forward a review opinion. Where the Chief Procurator finds it is necessary, they may submit it to the procuratorial committee for discussion and decision.

Article 37: People's procuratorates shall make one of the following distinct decisions based on different circumstances in administrative public interest litigation cases where review has concluded:

(1) Conclude review;

(2) Submit procuratorate recommendations;

(3) Initiate Public Interest Administrative Litigation

Article 38: If the People's Procuratorate, in handling an administrative public interest litigation case, makes a decision to go forward with a decision based on Article 37(1) or (2), it shall submit such completed decision within three months of filing the case; if it decides to go forward with a decision based on Article 37(3), then it shall submit such completed decision within six months of filing the case. Where there are special circumstances requiring an extension, report to the chief procurator for approval.

Article 39:In any of the following circumstances, people's procuratorates shall conclude their review:

(1) Upon review, there is no unlawful exercise of authority or nonfeasance by the administrative organ, causing harm to the national or social public interest;

(2) the administrative organ corrects its unlawful behavior or fulfills its legal obligations prior to the court submitting its recommendations to the procuratorate;

(3) Other circumstances where review should be concluded. Where review is concluded, a "Decision to Conclude Review" shall be drafted.

Article 40:Before initiating public interest litigation, people's procuratorates shall first issue a procuratorate recommendation to the relevant administrative department, urging it to correct unlawful conduct or perform its duties in accordance law. The administrative organ shall handle it in accordance with law with one month of receiving the written procuratorate recommendation, and promptly report back in writing to the people's procuratorate on the handling.

Article 41: Where, after pre-trial procedures, the administrative departments refuse to correct unlawful actions or don't perform legally prescribed duties, and the State's and societal public interests are still in a state of being infringed, people's procuratorates can initiate public interest litigation.

Article 42: The people's procuratorates initiate administrative public interest litigation as a public interest litigant 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.

Article 43:People's 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.

Article 44:People's procuratorates initiating administrative public interest litigation shall submit the following materials:

(1) Administrative public interest litigation bills of complaint;

(2) Preliminary evidentiary materials that the national or societal public interests have been harmed.

Article 45:People's Procuratorates initiating administrative public interest litigation bear the burden of proof for the following matters:

(1) Demonstrating that the complaints comply with legally prescribed requirements;

(2) The Procuratorate has fulfilled its pre-trial obligations by submitting a Procuratorate Suggestion and evidence that the administrative agency refuses to correct its unlawful behavior or fulfill its legal obligations;

(3) Other matters for which the people's procuratorate should be responsible for presenting evidence.

Article 46:When the People's Court holds a hearing for a administrative public interest litigation suit brought by the People's Procuratorate, the Procuratorate shall dispatch prosecutors to appear in court.

Article 47:The tasks of people's procurators appearing at court are:

(1) Reading the complaint for the administrative public interest litigation;

(2) Presenting and explaining evidence verified by the procuratorate through its investigation, and debating related evidence;

(2) Participating in in-court investigation, debating and expressing opinions about appearances at court;

(4) Engaging in other litigation activities in accordance with the law.

Where procurators discover illegalities in the court hearings, they shall submit a Procuratorate Reccomendation in the name of the procuratorate, during a recess or after the court proceedings have concluded.

Article 48:Mediation does not apply to administrative public interest lawsuits.

Article 49: If during the administrative public interest litigation the offending administrative organ corrects its illegal behavior or lawfully fulfills its legal obligations and satisfies all the litigation requests made from the People's Procuratorate, then the Procuratorate may amend the litigation complaint, request the judgement affirm the illegal administrative behavior, or withdraw the case.

Article 50:Local people's procuratorates of any level finding that the first-instance trial ruling or judgment of a people's court at the same level is truly in error, shall raise a prosecutorial counter-appeal to the people's court at the level above.

Article 51:Local people's procuratorates of all levels appealing first-instance trial judgments or rulings of people's courts at the same level that have not yet taken effect, shall submit the appeals complaint through the original people's court, and also send a copy to the people's procuratorate at the level above.

Where the people's procuratorate at the level above finds that the prosecutorial counter-appeal is improper, it may withdraw the counter-appeal at the people's court of the same level, and notify the lower-level people's procuratorate.

Article 52:In second-instance trial cases where the procuratorate submitted an appeal, or in appeals cases where the court decides to hold in court proceedings, the procuratorate of the same-level shall appoint personnel to appear at the second-instance court.

  Chapter III: Other Provisions

Article 53:Where local people's procuratorates plan to initiate public interest litigation in the people's courts, they shall report level by level to the Supreme People's Procuratorate for review and approval.

Cases of people's procuratorates review and approval of public interest litigation shall conclude review within one month of receiving case instruction. Where there are special circumstances requiring an extension, report to the chief procurator for approval.

Article 54:Materials to be submitted for review by provincial level people's procuratorates to the Supreme People's Procuratorate include:

(1) the public interest litigation case approval reporting reform;

(2) instructions of the provincial people's Procuratorate;

(3) The provincial level people's procuratorate's civil administration department's report on conclusion of review and group deliberation record;

(4) The complaint for the public interest litigation;

(5) A catalog of case evidence and the principle evidentiary materials.

Article 55:Litigation fees are waived for procuratorates initiating public interest litigations.

Article 56:Where there are no provisions in these Measures, the provisions of the Civil Procedure Law, the Administrative Litigation Law and relevant judicial interpretations apply, respectively.

  Chapter IV: Supplemental Provisions

Article 57:These Measures only apply to the provinces, autonomous regions, and directly-governed municipality of Beijing, Inner Mongolia, Jilin, Jiangsu, Anhui, Fujian, Shandong, Hubei, Guangdong, Guizhou, Yunnan, Shaanxi, and Gansu.

Article 58:These measures take effect beginning on the date of their promulgation. Where the judicial interpretation and normative documents previously released by this Procuratorate differ from the provisions of these Measure, apply these Measures.

 

About China Law Translate 659 Articles
CLT is a crowdsourced, crowdfunded legal translation project that enables English speaking people to better understand Chinese law.

1 Trackback / Pingback

  1. One Year on: Reform Pilots on Procuratorates Initiating Public Interest Litigation – NPC Observer

Leave a Reply

Your email address will not be published.


*