A small village is polluted
Why it affects the four levels of procuratorates across the country
Viewing the "Chinese Plan" of Public Welfare Protection from the First Case of Punitive Compensation for the Ecological Environment in China
● An environmental pollution case of dumping chemical waste liquid across provinces broke the quiet life of a small village. There were countless dead fish floating on the river. My mother-in-law had to stop her decades-old habit of washing clothes by the river. Villagers have successively developed skin rashes and other symptoms
● The defendant was sentenced to fixed-term imprisonment and a fine for the crime of polluting the environment, but the damaged environment was not restored in time.
The procuratorate filed a civil public interest lawsuit and requested punitive damages at three times the cost of environmental functional damages in accordance with the Civil Code, which was supported by the court
● In just a few years, public interest litigation has expanded to many fields such as safety production, public health, protection of rights and interests of women, children and the disabled, cyber infringement, poverty alleviation, protection of cultural relics and cultural heritage, etc. important judicial system
● Prosecutorial public interest litigation as a "Chinese solution" for public interest protection was praised by Erik Solheim, UN Deputy Secretary-General and Executive Director of UNEP: Chinese prosecutors file lawsuits on behalf of public interest, and even government departments can be used as defendants. It's an amazing judicial system
□ Our reporter Jiang Anjie
Dongkou Village, a small village with beautiful mountains and clear waters, is located in Xianghu Town, Fuliang County, a thousand-year-old city in Jingdezhen City, Jiangxi Province.
The village is named after a naturally formed karst cave. A small river flows through the village through the mouth of the karst cave. It is known as the "river of life" for the villagers at the cave mouth.
The people living here are peaceful and happy, drinking the clear mountain spring water and eating the fruits and vegetables grown in their own fields.
"We wash clothes and vegetables in the river." On February 13, 2023, a mother-in-law who was washing clothes with a wooden pestle by the river happily told the "Rule of Law Daily" reporter.
After careful questioning, I found out that my mother-in-law is 78 years old this year. When asked about the pollution of this small river before, the mother-in-law replied: "No one in the village knows!"
Environmental pollution breaks the tranquility of the village
Procuratorate initiates ecological public interest litigation
An environmental pollution case that occurred in 2018 broke the simple happiness of the villagers.
In the summer of that year, white foam suddenly appeared in the originally clear river, and there were countless dead fish floating on the surface of the river. My mother-in-law had to stop her decades-old habit of washing clothes by the river.
Lao Hu, a villager in his 60s this year, recalled to reporters that after his 6-year-old grandson went to take a bath in the river that day, small red spots appeared on his body, and soon there were many ulcers. When he went to the hospital for treatment, he was told that it was caused by skin poisoning.
Many villagers in the village developed skin rashes one after another, arousing everyone's vigilance.
The villagers spontaneously organized an investigation along the river, and finally found a tank truck that discharged waste liquid on the hillside above the cave mouth. The tank truck was very muddy and exuded a strong pungent smell.
Later, after investigation, it was found that there was an underground river leading to the river in the village, and the water use of the three downstream villages was affected.
The reporter learned from the interview that this is a vicious environmental pollution case of dumping chemical waste liquid across provinces.
Kuang Ning, Deputy Prosecutor General of Jingdezhen Municipal People's Procuratorate, was the prosecutor in charge of this case. She introduced the case to the reporter in detail——
From March to July 2018, Wu Mou, the manager of the production department of a chemical company in a certain province, handed over the sodium sulfate waste liquid produced by the company to Wu Mou B, who has no qualifications for hazardous waste disposal, and Wu Mou B and others to save labor and money. More than 30 vehicles and more than 1124 tons of sodium sulfate waste liquid were transported across provinces to Bajiaojing, Shouan Town, Fuliang County, and Dongkou Village, Xianghu Town, and dumped on the mountain, resulting in the pollution of 8.08 mu of soil and groundwater and surface water in a 6.6 square kilometer basin, seriously endangering More than 1,000 villagers have drinking water and water safety.
At the end of 2019, six defendants including Wu A and Wu B were sentenced to fixed-term imprisonment and a fine for the crime of polluting the environment.
Although the crime of destroying the environment has been punished, the damaged environment has not been restored in time.
On June 22, 2020, under the designated jurisdiction of the Jiangxi Provincial People's Procuratorate, the Fuliang County People's Procuratorate initiated an ecological and environmental civil public interest litigation procedure for the issue of damaging the environment and causing serious damage to social and public interests.
On November 17, 2020, the Fuliang County People's Procuratorate filed a civil public interest lawsuit with the Fuliang County People's Court regarding the case, requesting that the company be ordered to bear the environmental pollution losses caused by the dumping of sodium sulfate waste liquid, including pollution restoration fees, environmental Functional loss fees, emergency treatment fees, testing fees, appraisal fees, etc., totaled more than 2.85 million yuan, and apologized to the public on the national news media.
Applicable damages punitive damages system
Contaminated land remediation and sapling regreening
In a blink of an eye, time has entered 2021, and the case is about to go to court.
At the same time, the Civil Code was officially implemented on January 1. Article 1232 of the law stipulates: "Where the infringer violates the law and deliberately pollutes the environment or destroys the ecology and causes serious consequences, the infringed has the right to Request corresponding punitive damages."
The implementation of the new law has provided a clear legal basis for punitive compensation for the ecological environment, but a new issue has come before judges and prosecutors, whether the procuratorate can apply the Civil Code to file punitive damages, and whether additional punitive damages can be added in this case How to determine the standard of punitive damages?
One night during the New Year's Day holiday in 2021, the phone of Hu Weilie, director of the Eighth Procuratorate of the Supreme People's Procuratorate, suddenly rang. To his surprise, it was Chief Prosecutor Zhang Jun on the other end of the phone.
The Party Group of the Supreme Procuratorate attaches great importance to this case, emphasizing that ecological and environmental protection is a major and key issue of national governance, not only related to the mission and purpose of the party, but also the most common benefit of people's livelihood and well-being.
In order to implement the requirements of the Supreme Procuratorate's party group and Zhang Jun's deployment, and to resolve the application of punitive damages clauses, the Eighth Prosecutor's Office specifically discussed whether Article 1232 of the Civil Code in this case has retroactive effect and the constituent elements of this article. After in-depth research on specific procedural issues such as understanding and application, determination of punitive damages standards, and changes to litigation claims, an opinion was finally formed that the torts involved in this case polluted the environment and damaged the ecology occurred before the implementation of the Civil Code, but the infringer did not take action. Effective measures are taken to restore the ecological environment, and the ecological environment is continuously damaged until the implementation of the Civil Code, which seriously damages the public interest. According to the Supreme People's Court's application of relevant judicial interpretations such as the Civil Code, punitive compensation clauses may be additionally applied.
Under the guidance of the Supreme People's Procuratorate and the Jiangxi Provincial People's Procuratorate, the Fuliang County Procuratorate changed the lawsuit according to the law, added a lawsuit to the original lawsuit, and required the company to bear punitive damages for environmental infringement at three times the cost of environmental functional losses17 More than ten thousand yuan.
This case became the first case to apply punitive compensation liability for ecological damage tort after the implementation of the Civil Code.
On July 19, 2022, at the 4th Procuratorial Forum on Serving and Guaranteeing the Development of the Yangtze River Economic Belt, representatives of the eight major democratic parties carefully understood the case during their research and highly affirmed the procuratorial organs' measures to actively implement Xi Jinping's ecological civilization thought.
When the host Zhang Jun asked everyone if they had any questions, a representative said bluntly, "Why is the punitive damages only 170,000 yuan? It's too low."
In the elevator room, the representatives were still discussing with great interest that the application of justice should be improved, so that those who maliciously damage public welfare will be fined even more painful!
On February 13, the weather was cold and damp. The reporter sat around a brazier with several villagers in Dongkou Village, listening to them talk about the changes in the surrounding area: Lao Hu’s little grandson went to Shenzhen to study with his father last summer; he went down the river for his mother-in-law It is more convenient to wash clothes, and the village committee has built a laundry dam. With the joint efforts of the government, public security, courts, and environmental protection departments, the polluted land is also being repaired, and the saplings in the soil have turned green.
Listening to the comfort and satisfaction expressed in their eloquent narration, the reporter was inexplicably moved.
This case is a vivid microcosm of more than 700,000 procuratorial public interest litigation cases. It not only makes the newly established provisions of the Civil Code a vivid practice to help the construction of ecological civilization, but also provides a basis for the judicial application of punitive damages in civil public interest litigation on the ecological environment. Provides useful exploratory experiences and practical examples.
Practice the concept of win-win, win-win and win-win
"China Plan" wins praise from all parties
Public interest litigation is a major judicial reform initiative.
In October 2014, the Fourth Plenary Session of the 18th CPC Central Committee proposed to "explore the establishment of a public interest litigation system for procuratorial organs."
In July 2015, it was authorized by the Standing Committee of the National People's Congress to carry out pilot projects in some areas.
In July 2017, the amendments to the Civil Procedure Law and the Administrative Procedure Law were fully rolled out.
In the summer of 2018, the party group of the Supreme Procuratorate took the lead in proposing the cancellation of the railway transportation procuratorate's plan to add a public interest litigation procuratorate before it came up with the overall plan of institutional reform, and submitted it to the central government for approval.
Although there are different opinions internally, the idea of establishing a Public Interest Litigation Prosecutor's Office conforms to the general trend and serves the overall situation, and must be vigorously promoted.
In July 2018, the third meeting of the Central Committee for Deep Reform approved the establishment of the Public Interest Litigation Procuratorate by the Supreme People's Procuratorate.
Since then, procuratorial organs have carried out supervision of illegal activities in the fields of ecological environment and resource protection, food and drug safety, etc. by means of public interest litigation, which has become a new growth point for the legal supervision of procuratorial organs.
Since 2018, the procuratorial organs have always regarded the protection of the ecological environment as the top priority of public interest litigation, and have continued to explore and innovate in the field of ecological environment.
With "political wisdom + rule of law wisdom + procuratorial wisdom", the Supreme People's Procuratorate put forward the concept of "win-win, multi-win and win-win" to provide directional guidance for the healthy development of public interest litigation.
In 2018, it achieved full coverage of public interest litigation cases handled by grassroots courts across the country.
With the rapid increase in the number of public interest litigation cases, the Supreme People's Procuratorate has put forward two important concepts of public interest litigation procuratorial procuratorial concepts of "taking the realization of public interest before litigation as the best judicial state" and "continuous follow-up and supervision" to strengthen the orientation of quality and efficiency. Pay attention to the practical effect of handling cases to enhance the people's sense of gain.
In 2019, the Fourth Plenary Session of the Nineteenth Central Committee of the Communist Party of China proposed to "expand the scope of public interest litigation cases", and the Party Group of the Supreme People's Procuratorate adjusted the guiding principles for exploring new areas from "safe and active" during the pilot period to "active and safe", which reflects the steady progress of the procuratorial organs and prudence; typical cases in new fields such as the construction of barrier-free facilities in 2020 and the protection of personal information in 2021 demonstrate the positive response of public interest litigation prosecutors to the people's demands for a better life in the new era.
In 2019, the Standing Committee of the National People's Congress heard the special report of the Supreme People's Procuratorate on public interest litigation, and clearly stated that the Supreme People's Procuratorate and provincial people's procuratorates should directly file and handle major and influential public interest litigation cases.
At the end of that year, the Supreme People's Procuratorate directly filed a case for handling the Wanfeng Lake case for the first time.
In 2021, we will directly handle 6 public interest litigation cases, including the ecological environment damage case of the Nansi Lake Basin and the protection case of Chen Wangdao’s name and portrait rights. At the same time, the provincial courts have achieved full coverage of their own cases.
According to Zhang Xueqiao, deputy chief procurator of the Supreme People's Procuratorate, the waters of Nansi Lake and the four provinces of Shandong, Jiangsu, Henan and Anhui have different governance standards for the upper and lower reaches, left and right banks, and multiple pollutions are intertwined, seriously affecting the production and life of the people.
After the Supreme People's Procuratorate directly filed the case, it mobilized the prosecutors of the four provinces to handle the case, assisted the local governments in joint governance, and adopted a series of measures such as unifying the sewage discharge standards. It took 10 months, and a clear lake appeared.
Why is it proposed that "the realization of the purpose of safeguarding the public interest before litigation is the best judicial state"?
At the symposium for soliciting opinions on the "Report of the Two Sessions" of the Supreme People's Procuratorate in January 2023, some experts and scholars asked such questions.
Zhang Jun responded that the procuratorate issued procuratorial suggestions before the lawsuit to urge relevant administrative agencies to perform their duties in accordance with the law, which can not only protect the public interest in a timely manner, but also obtain the best social effect with the least judicial investment. Public interest litigation is by no means a "zero-sum game."
Ma Huaide, president of China University of Political Science and Law, said that although the procuratorial organs and government departments have different divisions of labor, their goals of serving the people and pursuing the rule of law are the same.
"Public interest litigation must be innovative and work from the height of promoting the modernization of the national governance system and governance capabilities. The work of the procuratorial organs is to strengthen the political foundation of the party's governance and win the hearts of the people for the party center. Of course, it will also win the party at all levels. The support of political leaders.” Public interest litigation is often faced with administrative agencies or powerful enterprises, which is also the core of the concept of “win-win, multi-win and win-win” put forward by the party group of the Supreme People’s Procuratorate.
It is reported that this was originally a request made by Zhang Jun in April 2018 when he was the first to conduct research in the former Civil Affairs Office, and it has now become a new procuratorial concept that comprehensively guides the procuratorial organs to perform their duties and handle cases.
Lawyer Tong Lihua has been participating in and researching public interest litigation issues for more than 20 years. He believes that the establishment of the Public Interest Litigation Office by the Supreme Procuratorate is a landmark historical event, which reflects the strategic thinking of the Supreme Procuratorate Party Group on the positioning of procuratorial organs in the new era.
In just a few years, public interest litigation has expanded to many fields such as safety production, public health, protection of rights and interests of women, children and the disabled, cyber infringement, poverty alleviation, protection of cultural relics and cultural heritage, and has become an important means of protecting the public interests of the people. The judicial system requires not only deep feelings of the people, but also firm determination and will.
Prosecutorial public interest litigation, as the "Chinese solution" for public interest protection, was once praised by Erik Solheim, Under-Secretary-General of the United Nations and Executive Director of UNEP.
In his opinion, Chinese prosecutors can file lawsuits on behalf of the public interest, and can even use government departments as defendants. This is a very remarkable judicial system.
In the report of the 20th National Congress of the Communist Party of China, it was clearly proposed to "improve the public interest litigation system." Hu Weilie said that this is a new requirement and higher expectation for the procuratorial public interest litigation system.
(Rule of Law Daily)