Perform legal supervision in the form of litigation, and continue to develop and improve the public interest litigation system with Chinese characteristics

——The person in charge of the Eighth Prosecutor's Office of the Supreme People's Procuratorate answers reporters' questions on typical cases of prosecution public interest litigation

  Recently, the Supreme People’s Procuratorate has released a number of typical cases of public interest litigation prosecution by procuratorial organs. What are the characteristics of public interest litigation cases initiated by procuratorial organs that are different from traditional litigation?

What problems should be paid attention to in practice?

Hu Weilie, Director of the Eighth Procuratorate of the Supreme People's Procuratorate, answered reporters' questions.

Reporter: What are the considerations and background of the public interest litigation case?

  Hu Weilie: Public interest litigation initiated by procuratorial organs is a procuratorial system and litigation system with distinctive Chinese characteristics. It is an important system design that promotes the modernization of the national governance system and governance capabilities with a rule of law thinking and a method of rule of law. It carries important political responsibilities and Charity mission.

  From July 2017 to June 2021, procuratorial public interest litigation has been fully launched for the 4th anniversary, and 19,695 lawsuits were filed, including 2,336 administrative public interest litigation and 17,356 civil public interest litigation (including 15,320 criminal and civil public interest litigation). In terms of field distribution, there were 14,175 cases of ecological environment and resource protection, accounting for 71.97%; 4186 cases of food and drug safety, accounting for 21.3%; 586 cases of state-owned property protection and state-owned land use rights, 45 cases of protection of heroic rights and 634 cases.

  The original intention and practice of the procuratorial public interest litigation system have proven that realizing public interest protection before litigation is the best judicial state.

Although the number of prosecution cases does not account for a high proportion of all the cases filed and handled, as a "back-hand" to the supervision of public interest litigation by the procuratorial agency, it strengthens the rigidity of the supervision of pre-litigation procuratorial recommendations.

  Regarding public interest litigation cases initiated by procuratorial organs, on the one hand, they present many particularities that are different from traditional litigation, which has aroused widespread attention and research in the theoretical and practical circles, and provided important points for the development and improvement of the public interest litigation system and even separate legislation. Practice samples.

On the other hand, the experience of success or failure in litigation helps procuratorial organs to further think and study how to conduct investigations and collect evidence in a more targeted manner, determine litigation requests more reasonably and accurately, perform the duties of appearing in court more fully, and more effectively protect public welfare damages. Really repair.

  We selected 12 typical civil public interest litigation cases and 11 administrative public interest litigation cases for publication, covering the areas of ecological environment and resource protection, food and drug safety, protection of state-owned property, transfer of state-owned land use rights, and protection of the rights of heroes. As well as all statutory fields and some new fields such as production safety, product quality and safety, and cultural relic protection.

  In administrative public interest litigation, the focus of the dispute mainly revolves around whether there is public interest damage, whether the defendant has statutory supervisory duties, and whether the defendant has fully performed his duties in accordance with the law, etc.; in civil public interest litigation, the focus of dispute mainly revolves around whether the illegal act harms public interest and the method of determining public interest damage And conclusions, the way and content of responsibilities, etc.

In terms of litigation procedures, some cases have undergone first instance, second instance and even protest retrial; in terms of litigation types, there are administrative public interest litigation, civil public interest litigation, including criminal incidental civil public interest litigation, which demonstrates the full process of procuratorial public interest litigation and various types of rich practices .

More importantly, the published cases have provided guiding legal standards for a series of typical and universal issues in the practice of public interest litigation, and how to better abide by the law and enforce the law for the general public, administrative agencies, procuratorial agencies, and judicial agencies. Judicial and joint strengthening of public welfare protection are of great and positive significance.

  Recently, the Supreme People’s Procuratorate has deployed a special activity for public interest litigation to improve the quality of public interest litigation in the country’s procuratorial organs.

The release of this batch of cases can guide local procuratorial organs to dare to supervise and be good at supervising, and to dare to file lawsuits to strengthen the supervision of "hard bones" and "old trouble" cases.

  In practice, some procuratorial agencies still have a fear of initiating public interest litigation, worrying about the long-term cooperative relationship with administrative agencies, lack of confidence in their own litigation capabilities, fear of losing the lawsuit, etc., so that they dare not sue, are unwilling to sue, and will not sue. In this regard, we hope to use this batch of case releases as an opportunity to guide local procuratorial organs to further realize that public interest litigation procuratorial is a lofty political responsibility, sacred legal responsibility, beautiful public welfare mission and innovative procuratorial function.

We must deeply understand and resolutely implement the "Opinions on Strengthening the Legal Supervision of Procuratorial Organs in the New Era" of the Central Committee of the Communist Party of China, always adhere to and rely on the leadership of the party, take the people as the center, actively learn and improve supervision capabilities internally, and strengthen communication with external parties to win support from all parties. , Transform the advantages of the socialist system with Chinese characteristics into the practical effectiveness of procuratorial public interest litigation, continuously develop and improve the procuratorial public interest litigation system, and contribute procuratorial wisdom and procuratorial plans to public welfare protection.

Reporter: What is the difference between procuratorial public interest litigation and ordinary civil litigation and administrative litigation?

What are the characteristics of the status of procuratorial organs in public interest litigation?

  Hu Weilie: It is generally believed that ordinary civil litigation and administrative litigation are private interest litigation, with the main element of the litigation being the "direct interested party" as the core element, and constructing a series of litigation principles and procedural systems that are compatible with this.

Although the procuratorial public interest litigation system is formally established in the Civil Procedure Law and the Administrative Procedure Law, it is significantly different from ordinary civil and administrative litigation.

Based on the constitutional positioning of legal supervision, the procuratorial organ is a judicial organ that guarantees the uniform and correct implementation of national laws. In procuratorial public interest litigation, it performs its legal supervision duties in the form of litigation and is not a direct interested party.

Litigation is the carrier and the way and means for procuratorial organs to perform legal supervision; supervision is the essence, and the fundamental attribute and value pursuit of the public interest litigation procuratorial system.

In the form of litigation, it is necessary to perform litigation obligations such as proof, cross-examination, and debate in accordance with the requirements of the litigation; performing legal supervision is to supervise the case during the handling of the case, and handle the case during the supervision, through litigation, litigation supervision, execution supervision, etc. Ensure that the public welfare is effectively repaired.

  The Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Procuratorial Public Interest Litigations stipulates a series of procedural rules that are different from ordinary litigation, such as the status of procuratorial organs in public interest litigation as "public interest litigants".

However, many of its different characteristics in terms of scope of case acceptance, litigation purpose, subject of litigation, procedural design, litigation rights and obligations, judgment enforcement, litigation supervision, etc. have not yet been clarified through legal norms, and there are different understandings in practice.

In this batch of cases, the procuratorial organs and the people's courts handled cases in conjunction with the case, and actively explored the improvement and improvement of the relevant procedural systems of public interest litigation, and demonstrated the wisdom and responsibility of the prosecutors and judges handling the case in public interest judicial protection.

Reporter: The law stipulates that in areas such as ecological environment and resource protection, food and drug safety, procuratorial organs can initiate civil public interest litigation or administrative public interest litigation. In practice, how does the procuratorial organ determine the supervision method?

  Hu Weilie: Although the law gives the procuratorial agency the function of initiating civil and administrative public interest litigation, from the perspective of the origin of the system, the administrative public interest litigation is the core of the procuratorial public interest litigation, and the procuratorial agency is also the only subject initiating administrative public interest litigation.

General Secretary Xi Jinping’s explanation to the Fourth Plenary Session of the Eighteenth Central Committee pointed out that the lack of effective judicial supervision is not conducive to the promotion of law in cases where some administrative organs illegally exercise their powers or do not act that cause infringements on the national and social public interests or risk infringements. Administration and strict law enforcement are not conducive to strengthening the protection of public interests.

The public interest litigation system initiated by the procuratorial organ is conducive to optimizing the allocation of judicial powers, improving the administrative litigation system, and advancing the construction of a government under the rule of law.

  In administrative public interest litigation, it is necessary to grasp the relationship between administrative agencies and procuratorial agencies in maintaining public interest.

The administrative agency is the first representative of the public interest. It not only has the statutory duty of safeguarding the public interest, but is also conducive to the restoration and maintenance of the public interest in terms of professional capabilities and overall planning of resources.

Administrative public interest litigation is essentially a supervisory lawsuit and a coordinated lawsuit.

In practice, procuratorial organs adhere to the supervision concept of win-win, multi-win and win-win, and solve a large number of problems of damage to national or social public interests through administrative public interest litigation. The administrative organs also gradually understand and accept from the beginning. , Actively rectify and even take the initiative to request supervision, let the procuratorial organs supervise and help solve governance problems, forming a good atmosphere of collaboration and joint efforts to protect public welfare.

In terms of improving the efficiency of comprehensive governance and improving the long-term mechanism of public welfare protection, administrative public interest litigation also has more advantages than civil public interest litigation.

  Regarding civil public interest litigation, on the one hand, when the administrative agency has exhausted its methods or insufficient law enforcement effectiveness, and public interest damage continues to occur, the procuratorial agency can fill in and protect public interest through civil public interest litigation.

On the other hand, when procuratorial organs initiate criminal prosecutions against criminal acts that damage the social and public interests such as destroying the ecological environment and resource protection, infringing on the legitimate rights and interests of many consumers in the field of food and drug safety, etc., they can file an incidental civil public interest lawsuit in the people’s court. The people’s court organizes trials in the same trial, which is conducive to saving judicial resources, improving judicial efficiency, and coordinating the realization of the coordinated accountability of criminal liability and public damage liability of offenders. Compared with two separate lawsuits or civil public interest litigation initiated by different subjects Obvious institutional advantages.

For example, in the case of the People’s Procuratorate of Songyang County, Zhejiang Province v. Liu Moumou and Ji Moumou for the production and sale of toxic and harmful food, the procuratorial organs filed a criminal and incidental civil public interest lawsuit, while prosecuting the offender’s criminal responsibility in accordance with the law. , And also held accountable for its public damages.

  In practice, the administrative public interest litigation and civil public interest litigation carried out by the procuratorial organs are not entirely single choices and independent of each other.

In some cases, the people will be the first to complement each other, and the responsibility for damage will be implemented to ensure that the public welfare can be repaired in a timely and effective manner.

For example, in the case of the People's Procuratorate of Guangzhou City, Guangdong Province v. Guangzhou Wei, a garbage factory, and Li Mouqiang solid waste pollution public interest litigation, on the one hand, the administrative public interest litigation urged the administrative agency to first commission a professional organization to repair the damaged environment in a timely manner; on the other hand, In a civil public interest lawsuit, the defendant was sued to order the defendant to pay more than 131 million yuan in compensation for ecological environment restoration fees and service function loss fees, and suggested that the court apply the pre-enforcement procedure to ensure that the environmental restoration costs are in place.

In some cases, the first class of public welfare is repaired, starting from the people, and starting from the point and the surface.

That is, when the procuratorial organ handles civil public interest litigation cases, the investigation found that similar public interest damage or regulatory loopholes exist in the jurisdiction, that is, the administrative public interest litigation case is filed and handled, and one type of public interest damage problem is supervised and solved by one case.

For example, the People’s Procuratorate of Guannan County, Jiangsu Province v. Li Moumou and others found that there were a large number of illegal docks in the Guanhe River Basin, which facilitated the illegal mining of sea sand, and the relevant regulatory authorities did not perform their duties in place. , Then issued an administrative public interest litigation pre-procuratorial proposal to the County Port Construction Administration, urging the removal of 56 illegal small docks and the restoration of 22.2 kilometers of river shoreline.

Reporter: What kind of litigation requests can procuratorial organs generally make in civil and administrative public interest litigation?

  Hu Weilie: In civil public interest litigation, the People's Procuratorate can request the defendant to stop the infringement, remove the obstruction, eliminate the danger, restore the original status, and compensate for the losses.

In ecological environment and resource protection, food and drug safety cases, punitive compensation claims can also be filed based on the actual situation of the case to increase the illegal cost of the offender, and achieve the purpose of making the offender not dare to commit the crime again.

There was a big controversy over whether punitive damages can be filed in public interest litigation. Procuratorates and judicial organs in various regions have strengthened communication, and after a lot of practical exploration, a certain consensus has been gradually formed.

  In 2018, the "two highs" jointly issued the first punitive damages case in the field of food safety, namely, the People's Procuratorate of Lichuan City, Hubei Province v. Wu Mou'an and other three civil public interest litigation cases for the production and sales of food that did not meet the safety standards, which was implemented in the Civil Code Later, the punitive damages filed by the Fuliang County Procuratorate of Jiangxi Province against a chemical company's environmental pollution civil public interest lawsuit was also supported by the court's decision.

The Opinions on Deepening Reform and Strengthening Food Safety Work by the Central Committee of the Communist Party of China and the State Council and the Supreme People’s Procuratorate, the Supreme People’s Court, the Ministry of Agriculture and Rural Affairs, the General Administration of Customs, the State Administration for Market Supervision and Administration, the State Food and Material Reserve Bureau, and the China Consumers Association jointly issued Minutes of the Symposium on Exploring the Establishment of a Food Safety Civil Public Interest Litigation System for Punitive Compensation, etc., have also made relevant requirements for punitive damages in public interest litigation.

  In administrative public interest litigation, the People's Procuratorate may, based on the different illegal circumstances of the administrative organ, submit to the people's court a litigation request to confirm that the administrative act is illegal or invalid, cancel or partially cancel the illegal administrative act, perform statutory duties in accordance with the law, and change the administrative act.

During the trial of an administrative public interest litigation case, if the administrative organ has fulfilled its duties in accordance with the law and fulfilled all the litigation claims, the People's Procuratorate may withdraw the prosecution.

If it is really necessary, the People's Procuratorate may change the litigation request and request a judgment to confirm that the administrative act is illegal.

For example, in the case of the People’s Procuratorate of Laohekou City, Hubei Province prosecuting and urging the performance of fishery resources supervision duties, the administrative agency fully performed its duties after the prosecution, and then changed the litigation request based on the overall performance of the administrative agency to confirm that the defendant had dealt with the Han River before the date of the prosecution. Illegal fishing such as electric fishing and ground cage nets in the Laohekou section is illegal for failing to fully perform the supervision and management duties.

  In addition, local procuratorial organs have explored ways of determining compensation methods and compensation amounts for some public welfare damages that are difficult to identify.

For example, the Second Branch of the People’s Procuratorate of Hainan Province v. Fujian Anmukang Shipping Co., Ltd. and other civil public interest litigation cases involving illegal sand mining. The procuratorate organized 7 experts in marine environmental practice and theoretical research to convene a demonstration meeting and provided a comprehensive assessment. Opinions and reasonably determine the relevant public welfare losses.

In the case of the People’s Procuratorate of Zunyi City, Guizhou Province v. Xiao Mokai and Xiao Mobo for illegally occupying cave resources, the prosecutors commissioned a professional organization to evaluate the damage to the cave and issue an "Ecological Restoration Assessment Report" to determine the restoration method and related cost.

In the case of the People’s Procuratorate of Chengxi District, Xining City, Qinghai Province v. Li XX and others for illegal fishing of aquatic products, the procuratorate established an annual dynamic assessment of the loss of naked carp resources in Qinghai Lake through the establishment of an agreement with the agricultural and rural departments. The long-term mechanism has clarified the methods and costs of proliferation and release, and explored and realized the restoration standards and models for the loss of specific resources in specific areas.

Reporter: In 2017, the General Office of the Central Committee and the General Office of the State Council issued the "Eco-environmental Damage Compensation System Reform Plan". In practice, how does the procuratorial environmental public interest litigation and the ecological environment damage compensation litigation work together?

  Hu Weilie: Prosecutorial environmental public interest litigation and ecological environment damage litigation are both important parts of my country's ecological civilization legal system. Although the two have differences in the scope of cases, the subject of prosecution, the sequence of litigation, and the design of procedures, the fundamental goal is Unanimously, the administrative agency is always the first priority for ecological and environmental protection, and the procuratorial agency plays the role of "supervision + support + replacement". The "People's Procuratorate's Public Interest Litigation Rules" clearly stipulates that if the People's Procuratorate believes that public interests have been harmed and there are illegal acts that meet the conditions for initiating the ecological environment damage compensation procedure, the People's Procuratorate can notify the compensation right holder to initiate the ecological environment damage compensation procedure. Support the prosecution. If the right holder for compensation for ecological environment damage has not initiated the ecological environment damage compensation procedure, or has not reached an agreement after consultation, and the compensation right holder has not filed a lawsuit, and the public interest is still in a state of damage, the people’s procuratorate shall initiate a civil public interest lawsuit. For example, the People’s Procuratorate of Qinzhou City of Guangxi Zhuang Autonomous Region v. a Qinzhou Manganese Industry Co., Ltd. and other civil public interest litigation cases involving the transfer of hazardous waste and environmental pollution. Consultation. Later, the case caused large losses and many illegal actors. There were prevarication and wait-and-see attitudes. The negotiation failed to reach a compensation agreement, and the damaged public interest has not been effectively repaired. The eco-environmental department replied that it did not have the conditions to file a lawsuit for the time being, and suggested that the procuratorial agency initiate a civil public interest lawsuit. The procuratorial organs promptly filled up their seats and filed civil public interest litigation, effectively prosecuting the relevant offenders for public interest damage liability.

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