ON INDISPENSABLE PREMISES FOR CHINESE CITIZENS TO INITIATE CIVIL PUBLIC INTEREST LAWSUITS
TABLE OF CONTENTS
I. THE ORIGIN OF THIS RESEARCH
II. LACK OF SUFFICIENCY IN THE PROTECTION OF CIVIL PUBLIC WELFARE BY THE THREE STATUTORILY AUTHORIZED CHINESE ENTITIES
A. The Protection by Statutorily Authorized Administrations Is Insufficient
B. The Protection by Statutorily Authorized NGOs Is Insufficient
C. The Protection by the People’s Procuratorates Is Insufficient
D. Insufficient Protection by Authorized Entities Means Probabilities for Citizens to File Civil Public Interest Litigation
III. THE STATUS QUO OF LAWSUITS INVOLVING PUBLIC WELFARE INITIATED BY CHINESE CITIZENS
In the light of the judicial practice data in recent years, the three authorized case-filing entities (the related administrations, non-governmental organizations and the people’s procuratorates) have failed to provide adequate and thorough litigation protection for the relevant public interests. Under the joint influence of ‘government failure’, ‘voluntary failure’, ‘market failure’ and ‘legal institution failure’, for the cause of providing better and more sufficient protection for civil public interests, our legislators should reserve opportunities and leeway for citizens to file those types of litigations. Moreover, as a matter of fact, citizens have already made full use of the existing system to file cases involving public welfare to the people’s courts and ultimately prevailed in their trials.
I. THE ORIGIN OF THIS RESEARCH
In this post-industrial era, the scale of mass production, the scale and the speed of commodity exchange are growing rapidly in geometric progression. The geographical scope of commodity exchange has already gone beyond the national boundaries of a country. ‘In the backdrop of economic globalization and social integration, more and more people are quietly integrated together to share the common interests, bear the damage from the same source, and form the public interests that cannot be fitted in the traditional litigation structure.’ In this context, a large number of cases of infringement on public interests have emerged. This is a great challenge to the traditional system of civil trials.
As one of the strategies to meet this challenge, China’s legislature revised the Civil Procedure Law (hereinafter referred to as the CPL) in 2012. Article 55 of the CPL provides that ‘For certain harassments against social public interests, such as environmental pollution, the infringement against the unspecified majority of customers, statutorily authorized administrations and related social organizations can file litigations to people’s courts.’ In the history of New China, for the first time, the law empowered ‘statutorily authorized administrations and related social organizations’ to lodge civil public interest litigation in the court. This is a landmark event in the chronicle of China’s CPL. In a sense, it has changed the basic structure of civil litigation in China, which only deals with private interest disputes between or among the parties, and brings the public interest claims to the judiciary. As a further implementation of the aforesaid article 55, the Supreme People’s Court (hereinafter referred to as the SPC) has promulgated and implemented a series of judicial interpretations and normative documents, such as the SPC’s Certain Interpretations on How to Apply Laws to the Trials of the Public Interest Lawsuits, the Notice of SPC, the Ministry of Civil Affairs and the Ministry of Environmental Protection on Enforcing the Environmental Civil Public Interest Litigation System (promulgated on December 26, 2014, effective on December 26, 2014), etc. Meanwhile, the National Legislature of China has made complementary amendments to the Law on the Protection of Consumer Rights & Interests (hereinafter referred to as the LPCRI) and the Environment Protection Law (hereinafter referred to as the EPL), so as to specify the scope and requirements for environmental protection organizations and consumer protection organizations that shall be entitled to file civil public interest litigations.
Since then, taking the ambiguous legal status of the people’s procuratorate in public interest litigation into consideration, the Standing Committee of the National People’s Congress (NPC) specially revised article 55 of the CPL in 2017, making the original content of that article as its first paragraph and adding the second paragraph, thus clearly stating that people’s procuratorates at all levels are legally competent to file public interest litigations. Subsequently, in March 2018, the SPC and the Supreme People’s Procuratorate (hereinafter referred to as the SPP) jointly promulgated the SPC & SPP’s Joint Interpretation on Certain Matters concerning the Law Implementation in the Civil Public Interest Litigation Filed by People’s Procuratorates (hereinafter referred to as the Interpretation of Procuratorial Public Interest Litigations), which has created more detailed provisions on various systems of civil public interest litigation that shall be initiated by the people’s procuratorates.
After the aforementioned ‘statutorily authorized administrations and related social organizations’ and the people’s procuratorates are authorized to launch public interest litigations, the debate over whether citizens should also be given the same right has become increasingly prominent and hotly-debated. To solve this puzzle, we have to answer the following two questions in the first place: First, is the protection of civil public welfare adequate by the case-filing acts of the three empowered Chinese entities? If it is not enough, then there must be possibilities to further authorize individuals to file such lawsuits. Second, on the basis of solving the previous question, in order to let citizens file such lawsuits, the following ‘stumbling blocks’ must be removed right from the start: a commonly held myth is that public welfare can not be sufficiently represented by individuals; some people will fatten themselves in the name of public welfare; this type of lawsuits filed by scattered individuals will increase the workload of the court, resulting in a waste of the precious yet limited judicial resources; investment in public interest litigation is huge, individuals lack sufficient time, energy and money for it; citizens generally lack the related professional knowledge; citizens are too weak to challenge the related judicial provincialism and judicial corruption. Last but not least, due to people’s general desire to be a ‘free rider’, but not to be the ‘leading bird to bear the brunt of attack’, even if they are given this right, it is feared that it will eventually ‘exist in name only’.
II. LACK OF SUFFICIENCY IN THE PROTECTION OF CIVIL PUBLIC WELFARE BY THE THREE STATUTORILY AUTHORIZED CHINESE ENTITIES
Since the establishment of the civil public interest litigation system in 2012, eight years have since passed by. As for the matter of filing this type of cases to courts, each authorized organ and organization has done a lot of work and made great achievements. For example, ‘According to statistical analysis, from 2005 to 2014, courts at all levels across the country accepted 47 cases of environmental public interest disputes, with an average of 4.7 case per year; after the implementation of the new EPL in 2015, the number of cases accepted in that year alone reached 62, rising to 146 in 2016.’ And according to the Economic Daily, as of the end of August 2019, ‘the procuratorial organs at all levels have dealt with 204,446 complains concerning public interest, issued 174,534 procuratorates’ suggestions in writing to related administrative organs before case-filing, issued 4,224 announcements urging the qualified plaintiffs to launch civil public interest litigations, and actually filed 5,911 lawsuits to the people’s courts.’ Meanwhile, it was also reported that ‘in 2018, 65 environmental civil public interest cases filed by social organizations were accepted by the courts, and the trials of 16 of them have been concluded so far.’ Although the achievements are remarkable, it is undeniable that, due to various complicated reasons, the current three litigation initiators have failed to provide all-around and sufficient protection for the involved public welfare.
A. The Protection by Statutorily Authorized Administrations Is Insufficient
As for the ‘statutorily authorized administrations’ in article 55 of the CPL, ‘Undoubtedly, party organs, organs of people’s congress and judicial organs can not be the initiators of public interest litigations. It is questionable whether military organs can be the initiators of those litigations (the mainstream theory tends to exclude them), and the procuratorial organs and administrative organs are the most likely to have the qualification of initiators.’ However, from the perspective of judicial practice, various administrative organs are not very enthusiastic about bringing such lawsuits to the court. For example, ‘From December 2015 to May 2018, only 8 cases of compensation for ecological environment damage filed by administrative organs were accepted by courts nationwide.’ According to the research, ‘In practice, the desire of administrative organs to file environmental public interest litigation is not very strong, cases are often prosecuted under the supervision of the procuratorates. For example, the case of Kunming Environmental Protection Bureau v. Sannong Agriculture & Animal Husbandry Co., Ltd., Danzao Township Government under Foshan City v. Guangdong Tianyi Group Co., Ltd., the Environmental Pollution Case Involving Su Guohua and Others, and the case of Land and Resources Bureau of Anning City v. Dai Wangxiang are all demonstrating the similar situations.’
This paper argues that there are at least eight reasons behind the aforesaid phenomenon: First, even though article 55 of the CPL provides ‘statutorily authorized administrations’ in principle, other laws and regulations, judicial interpretations and normative documents have not yet settled the category and scope of ‘the selected organs’ that can bring such a lawsuit to the court. There are numerous administrative organs in China, but article 55 only vaguely says that ‘statutorily authorized administrations’ can file public interest litigations. Up to now, its many details are yet to be thoroughly clarified. Such as which administrative authorities can commence such proceedings? What levels of administrative authorities can initiate such litigation? Which administrative organ is barred from launching such a lawsuit? And why? What are the preconditions for administrative organs to satisfy before it can actually lodge such a lawsuit, etc.
Second, for the setup and running of China’s administrative organs, there has always been the chronic defect of ‘the division of administrative jobs according to their functions’. In other words, problems like many administrations act on their own and without coordination from their counterparts, the relevant governance is decentralized, the whole administrative system is yet to be smoothed and so on, are actually caused by that almost incurable flaw. Under that situation, as for the administrative supervision and handling of the Tran regional infringement of public welfare and the complex public welfare cases in which not only the public and private interests are intertwined, but also the damage is caused by multiply inflictors for different reasons. In order to settle those issues by resorting to judicial means, a large number of different types of administrative organs’ involvement are unavoidable. If such a case needs to be filed, is one of the relevant administrative organs deemed to be the sole qualified plaintiff? Or should some or all administrative organs file the lawsuit jointly? When the case filed by one administrative organ is pending to a particular people’s court, is it probable for other related administrators to apply for their participation in the upcoming trials of that case? If the permission is granted, what kind of legal standing will those later participants enjoy? Are they the real inseparable co-plaintiffs? Are they the analytical inseparable co-plaintiffs? Are they the separable co-plaintiffs? And why? However, the current laws, regulations and judicial interpretations shed little light on puzzles like that. This is not only bad news for the judicial protection of public welfare, but also may lead to the problem that these administrative organs would blame each other for the failure to prosecute.
Third, ‘From the perspective of China’s actual political ecology, courts are often ‘weaker’ than administrative organs. Instead of solving the problems themselves, the ‘strong’ administrators will hand the related disputes over to the relatively ‘weak’ courts for decisions. On the one hand, this mechanism may lead to the inability to get relief for the public welfare, and on the other, it is also suspected of shirking administrative responsibilities.’ This may enhance ‘the reversed encouragement for administrative organs not to actively and timely take administrative measures, eventually leading to logic confusion for judicial affairs and potential conflicts among administrative organs’ functions.’
Fourth, as far as the scheme of civil public interest litigation initiated by administrative organs is concerned, there is still a theoretical dilemma, that is, ‘If the civil public interest litigation is regarded as the way for the administrative organs to perform the duty of protecting the social and public interests, it is undoubtedly expanding the power of the administrative authorities and squeezing the rights of the citizens. This is completely contrary to the concept of power control and the notion of power restrictions emphasized in modern administrative law. Furthermore, by lodging related civil public interest litigations, the administrative organs that are unwilling to take measures to protect the social and public interests can effectively avoid the fate of becoming the defendants in related administrative public interest litigations, which in essence weakens the citizens’ supervision over the state organs.’
Fifth, under the unique political framework of China, the neutrality of governments at all levels is limited. For the sake of their own interests, local governments may relax the relevant administrative responsibilities and obtain political achievements in economic development at the expense of public welfare. This is mainly manifested in two aspects: ‘On the one hand, the administrative organs of our country are quite different from those of many market economy countries. The administrative organs of these countries generally do not directly involve in economic and market activities. However, the administration of our country directly participates in many economic activities such as setting up enterprises, attracting investment, construction and development, etc., and may become the inflictor of infringement or co-inflictors of infringement of public welfare cases. On the other hand, some activities that damage public interests, such as those that pollute the environment or cause ecological damage, are not directly involved by the administrative organs, but for the sake of parochial interests of developing the local economy, the administrative organs are likely to acquiesce in or even turn a blind eye to these activities that damage public interests, so they are not willing to file a lawsuit, or prevent the relevant parties from filing a lawsuit, or uncooperative and unsupportive in the related investigation and its evidence collection, or even putting pressure on the local court not to accept and try such litigation.’
Sixth, most of the local administrative organs in China are part of the local government. The power to promote and demote staff and power of budgetary allocations for those administrative organs are controlled by the local government. Under that situation, even if such a lawsuit is to be filed, the related administrative authorities must not ignore the attitude of local senior leaders and governments. Some scholars especially pointed out that ‘many phenomena in the practice of public interest litigation in China are just the logical results of local governments competing for benefits under the pressure political system of China, and are the results of local governments coping with the stress of political achievements from high above under that political system of pressure.’
Seventh, for some perpetrators of public welfare with ‘strong political props’, the administrative organs are often faced with the embarrassment of ‘almost impossible to sue’. ‘For some pollution cases caused by large and medium-sized state-owned enterprises or enterprises with great social influence, because of the political, economic and social influence of these enterprises in the local society and in the whole country, even if the administrative organs want to sue these enterprises, their case-filing attempt is impossible to accomplish. Therefore, those administrative organs will simply give up their right of suing, and let the government handle these disputes through administrative or political channels. A typical example of this scenario is the case of pollution of the Songhua River Basin caused by the explosion of a Diphenyl plant affiliated to Jilin Branch of PetroChina, which was eventually settled through political or administrative channels.’
Eighth, as to whether the litigation for protecting the national interests initiated by the relevant administrative organs is civil public interest litigation or not, the current laws, regulations and judicial interpretations give no clear answers. General Office of the Central Committee of the Communist Party of China and the General Office of the State Council jointly issued the Reform Plan of Compensation System for Ecological & Environmental Damage in December 2017. In line with that normative document, provincial and municipal governments and their designated departments or branches are authorized as the ‘right holders of compensation for ecological and environmental damage’ in their respective local regions, which means those organs are empowered to file National Interest Litigations to the courts. However, the juristic circle of China has not yet reached a commonly-acceptable conclusion on the nature of those National Interest Litigations: are they civil public interest litigations or not? It is afraid that this uncertainty will become an obstacle for administrative organs to fulfill their functions in the area of civil public interest litigations.
In light of the above analyses, for the existing administrative system and legal provisions, it is obvious that civil public interest litigations brought by ‘statutorily authorized administrations’ may lead to insufficient public welfare protection and system failure.
B. The Protection by Statutorily Authorized NGOs Is Insufficient
2015 is the implementation year of the new EPL of China. The right of the relevant social organizations to file environmental public interest litigation was finally acknowledged by the law. Although many people optimistically assumed that the number of civil public interest litigations initiated by qualified organizations would increase dramatically, by querying the relevant data, we can say that, as a group of competent plaintiffs to lodge this type of cases, statutorily authorized organizations in China generally lack the zeal and enthusiasm to do their designated judicial job. For example, ‘According to the data provided by the China Consumer Association (CCA), in 2014, 2015 and 2016, the number of consumer complaints dealt with by the CCA was 619,415, 639,324 and 653,505 respectively, but the public interest litigations initiated by the CCA in the same year was 1, 1 and 3 respectively. It is evident that the number of consumer civil public interest litigations are too small, and cases are mainly settled through mediation. Therefore, the function of consumer public interest litigation in protecting the rights and interests of consumers is extremely limited.’ As another example, ‘According to the statistics of the Civil Organization Administration Bureau of the Ministry of civil affairs, as of the end of the third quarter of 2014, more than 700 social organizations across the country have met the requirements for filing environmental civil public interest litigations. However, in 2015, only 9 actually filed lawsuits, China Biodiversity Conservation & Green Development Foundation (CBCGDF), Friends of Nature, All-China Environment Federation (ACEF) and Guiyang Public Environmental Education Center (GPEEC) launched the majority of those cases, and the remaining 5 only filed one or two cases symbolically, which is obviously not ‘normal’.’ Finally, ‘In accordance with the Report on the Work of the SPC in 2018, there were 252 environmental public interest litigations filed by social organizations from 2013 to 2017, and the latter only accounted for 15.4 percent of the total.’
This paper holds the opinion that there are nine main reasons for the above phenomena: First, since the reform and opening up, although China’s social organizations have made great progress, however, only a few of them are qualified to file civil public interest litigations. For example, the newly revised LPCRI and EPL adopt a cautious attitude of strict restrictions: Only consumer associations (or consumer protection committees) at or above the provincial level are qualified to file consumer public interest litigations, and other related organizations are excluded. The plaintiffs of environmental public interest litigation are also limited to the social organizations lawfully registered by the civil affairs departments at or above the prefecture level and specialized in environmental protection public welfare activities without any law-breaking record for at least five years. According to statistics, ‘as of September 2018, the number of social organizations competent to file environmental public interest litigation has just increased to 22.’ In essence, this excluded a lot of non-governmental environmental protection organizations and environmental protection funds from filing such a case, which is quite harsh.
Second, in any country or region, the operation of public welfare protection NGOs is plagued by an almost incurable chronic disease, that is, ‘the owners of non-profit organizations are ambiguous, their voting rights are still controversial or do not exist at all; their public welfare objectives are obscure, or at least difficult to quantify; the residual claim holders are unable to implement effective supervision or are simply not willing to implement that supervision ....There is no market for corporate control; there is no competition for the agency; there is no derivative action by shareholders, and there is little market competition. Internal governance is difficult to achieve the desired level, which may become a fatal flaw of non-profit organizations. Due to the lack of governance measures, such organizations may deviate from public welfare goals, turn to seek economic interests, and even accept bribes from those potential infringers they try to check. Finally, their reputation is widely questioned, and their credibility of law enforcement activities also encounters a major setback. Objectively speaking, although it is possible to explore various ways to strengthen the governance of non-profit organizations, the nature of such organizations determines that the effect of governance measures is limited.’ In China, it is unquestionably that statutorily authorized organizations for filing civil public interests will assuredly be haunted by those symptoms, too.
Third, in the first paragraph of article 55 of the CPL, as a limiting condition, ‘statutorily authorized’ virtually deprive enormous social organizations’ opportunity and the possibility to file or attend public interest litigations. In China, many social organizations are not established and operated by observing laws, but by complying with certain administrative regulations such as Regulations on the Registration and Administration of Social Organizations, Regulations on Funds, and Provisional Regulations for the Registration Administration of People-Run Non-Enterprise Units. In order to expand the scope and number of social organizations that can bring such lawsuits, we should change ‘statutorily authorized’ to ‘established in accordance with laws and regulations’ when amending the CPL in the future.
Fourth, in China, the civil public interest litigation initiated by statutorily authorized organizations is restricted to the limited fields of large-scale consumer protection and environmental protection. This means that those organizations have no right to file or participate in other types of public interest litigations. For example, ‘the procuratorate is the sole right holder to initiate environmental administrative public interest litigation and collateral civil public interest actions attached to a criminal proceeding. Apparently, environmental public interest organizations are not qualified plaintiffs for these two types of lawsuits.’ Furthermore, in the restricted area of authorization, the types of claims that statutory organizations can put forward are also limited. For example, although SPC’s Certain Interpretations on How to Apply Laws to the Trials of the Public Interest Lawsuits concerning Customers’ Rights & Interests provides that competent plaintiffs can file claims such as stopping harassment, removing the obstruction, eliminating danger, making an apology, and confirming the invalidity of arbitrary clause draft by one party unilaterally, it obviously avoids whether the plaintiff can claim damages in this particular public interest litigation.
Fifth, in terms of the prerequisites for the establishment of organizations, according to the relevant administrative laws and regulations, China implements a dual management system for NGOs, that is, departments of civil affairs at various levels are responsible for the establishment and registration of NGOs, whereas related trade authorities have the duty to supervise NGOs’ daily professional operations. Therefore, if NGOs want to be recognized by law, they must register with the appropriate department of civil affairs, but as a precondition, they must seek out and get written approval from a related trade authority in advance. However, even though it is not impossible, but it is truly difficult for domestic grassroots NGOs and foreign NGOs to find the correct and willing trade supervisors to endorse their registration applications. Consequently, across the country, the official registration rate of public welfare protection NGOs is relatively low. Most of them can only be registered as people-run non-enterprise units or even as profit-making entities. The environmental protection groups organized by university students are commonly registered with the Communist Youth League Committee in colleges or universities. In addition, many public welfare protection NGOs have not gone through any registration procedures. In this context, if the law only allows a small number of approved organizations with ‘official’ or ‘semi-official’ background to file civil public interest lawsuit, it will inevitably deprive other NGOs of their suing right for this type of case.
Sixth, as indicated in the previous discussion, on the one hand, China’s social organizations that are permitted to file civil public interest litigation generally are those enjoying official or semi-official status. For example, ‘even a few large-scale legally registered environmental protection organizations are mostly established with the support of the government. They have a strong administrative color. In fact, they are tools for the government to mobilize society, and lack the ability to act independently.’ As another example, China’s consumer associations at various levels are official organizations initiated by the corresponding government. Their staff appointment and removal, as well as the allocation of operation expenses are controlled by the corresponding Administration for Industry and Commerce, and are operated under the latter’s leadership. On the other hand, ‘the structure and personnel of social organizations with the official background are often difficult to avoid bureaucratic tendency, which leads to the inappropriate replacement of their goals. They regard striving for funds as their purpose, and gradually forget or deviate from their original aim for their own selfish interests, and even lose their independence and become the agents of some major official patrons. Meanwhile, their dependence on official funding also weakens its ability to criticize and supervise the government, and even eventually becomes a quasi-government institution.’ As a result, there is serious doubt on how representative these government-run associations are to the real needs and voices of the people.
Seventh, in view of the public interest claims filed by social organizations, courts in China are inclined to show preference and concern for government-sponsored organizations, as well as the tendency to distrust and disdain against other NGOs. For example, ‘in August 2014, Taizhou Environmental Protection Association, with a strong official background and a deputy director of the local environmental protection bureau as its legal representative, directly targeted the source enterprises of hazardous waste, and sued six such enterprises to the people’s court. The result of the lawsuit is that these six enterprises need to compensate 160 million yuan for the pollution damage they have caused.’ In contrast, as a registered NGO (a people-run non-enterprise unit), the case-filing activities of ‘Friends of Nature’ has encountered setbacks, twists and turns. ‘On November 12, 2014, Friends of Nature continued to file its lawsuit to Taizhou Intermediate People’s Court. On January 15, 2015, without conducting any substantive examination, Taizhou Intermediate People’s Court issued a procedural ruling to reject the case on the ground that the plaintiff was not qualified to sue. It was not until May 2015 that the case was accepted by Jiangsu Provincial High People’s Court. On May 25, 2015, Friends of Nature received the procedural ruling on Taizhou Intermediate People’s Court’s rejection of public interest litigation concerning Friends of Nature v. Zhongdan Chemical Industry and Others, which was served by the Jiangsu Provincial High People’s Court. The procedural ruling decided that the case shall be remanded to the court of the first instance for retrial, and determine that Friends of Nature met the requirements of the plaintiff.’ Generally speaking, the environmental public interest litigation before 2015 was mainly initiated by environmental protection NGOs with official background, and the participation and case acceptance rate of true NGOs were very low. For similar cases, it even appeared that only those filed by official-sponsored organizations would be accepted. ‘Of the 12 environmental civil public interest litigations filed by environmental protection organizations in the past 10 years, 9 were filed by All-China Environment Federation alone or jointly with others. In terms of organizational scale, almost all the plaintiffs are national organizations with headquarters in Beijing and lawsuits in other places.’
Eighth, at present, China’s various types of NGOs are rather young and green, most of their funding sources are very unstable, and the specific support policies of the State for them to file public interest litigation are not clear. These ‘short boards’ have become a huge obstacle for those NGOs to launch various public interest litigations. For example, the relevant environmental protection research report shows that ‘about 48 percent of the NGOs have no legal business, the annual financing of 81.5 percent is less than 50,000 yuan, and 60 percent are unable to afford the daily office expenses.’ ‘In terms of funding, it is estimated that each public interest litigation will require about 200,000-300,000 yuan financial support, including litigation costs, attorney fees, appraisal fees, etc. According to the relevant judicial interpretation, even if part of the costs can be reduced or borne by the losing party, the plaintiff still has to pay the full amount in advance and bear the risk of losing the lawsuit. Meanwhile, the special funds for public interest litigation in various regions are managed chaotically. Since the annual budget of most NGOs is less than 1 million yuan, it is simply ‘unbearable’ for them to file public interest litigations.’ In addition, in terms of staff recruitment and talent introduction, NGOs also have a lot of work yet to be done, which is not optimistic. For example, ‘it is very difficult for China’s environmental NGOs to be staffed. The scale of China’s environmental NGOs is generally small. Nearly 75 percent of the environmental NGOs established by the people spontaneously have no full-time staff but only part-time staff.’
Ninth, as far as the public interest protection organizations are concerned, their development situation in China is uneven, too. For example, ‘among 32 provinces, autonomous regions and municipalities directly under the central government, only Jiangsu, Ningxia, Guizhou and Beijing have accepted more than 10 cases of public interest disputes filed by NGOs, while the number of provincial units with less than 5 cases reached 19. In the meantime, Heilongjiang, Shanghai, Tibet, Shaanxi and Qinghai have not yet achieved a breakthrough in accepting just one case.’ ‘Due to the influence of talents, funds, environmental protection knowledge and cultural differences, the development trend of NGOs is extremely unbalanced. In Yunnan, Sichuan, Shaanxi and other western regions, people have developed the tradition of loving mountains and waters for a long time, and the civilian forces for environmental protection are relatively strong; the number of environmental NGOs in Central China is relatively small, and the quality of activities carried out is generally not high. It is difficult for NGOs to register and the official supervision is more stringent. The government there does not support and trust environmental NGOs. In terms of the cultivation and development of environmental NGOs, attention should be paid to environmental protection NGOs as a whole, there is a big gap compared with Shenzhen and Beijing. Therefore, very few environmental protection organizations in the central region are capable of filing environmental public interest litigations.’
From the above elaborations, in China’s mainland, it is safe to say that under the existing system and legal provisions, the problems of insufficient public welfare protection and voluntary failure may occur in the civil public interest litigations filed by ‘statutory authorized organizations’.
C. The Protection by the People’s Procuratorates Is Insufficient
From the perspective of legal provisions, based on the articles of the Constitution of China, the Organizational Law of the People’s Procuratorates and the CPL, the people’s procuratorate is not only the supervisor of law implementation, but also a strong defender of public interest. On this basis, many scholars claim that the people’s procuratorate should play a pivotal role in public interest litigations. For example, ‘Professor Tang Weijian pointed out that the development of social public welfare organizations in China is not sufficient, and it is difficult to rely on social organizations to file public interest litigations. More emphasis should be placed on the leading role assumed by procuratorial organs. Professor Li Yanfang and others also believe that in the long run, social organizations and the general public they represented should be the main force of environmental public interest litigations. However, judging from the current situation of environmental public interest litigations, the procuratorial organs still need to play a leading role at this stage.’
By examining the civil public interest litigations filed by procuratorial organs in recent years, however, we could find that, for this remedy, there are a series of problems yet to be solved:
First, the procuratorial organs have an obvious administrative tendency in handling public interest litigations, and almost regard handling public interest litigations as a political task. It has been reported that the SPP has put forward a mandatory target for the promotion of public interest litigation assumed by local procuratorates, namely the so-called ‘three steps’. From the perspective of judicial practice, the number of environmental public interest litigations filed by procuratorial organs has been skyrocketing since the implementation of the Pilot Program of Public Interest Litigation Initiated by Procuratorial Organs in July 2015. ‘By the end of December 2016, half a year after the launch of the pilot project, procuratorial organs had filed 74 environmental public interest cases, accounting for only 38 percent of the total number of public interest litigations. By September 2018, of 2,041 environmental public interest litigations that have been accepted by courts, the number of public interest lawsuits filed by procuratorial organs is 1,836, accounting for 90 percent of the total number of cases accepted.’ According to the Democracy & Law Times, ‘as of November 2018, each basic procuratorate in this country has at least one public interest case in its hand to deal with.’ But at the same time, ‘the number of public interest litigations initiated by procuratorial organs has declined significantly after the pilot period. From July 1, 2015 to June 30, 2017, which is the date for the conclusion of this pilot project for procuratorial organs to file public interest litigations, courts across the country accepted 1,126 public interest lawsuits filed by procuratorial organs, and concluded 938 of them. After the amendment of the CPL and the Administrative Procedure Law, from July 1, 2017 to December 31 of the same year, courts across the country have accepted 257 public interest cases filed by procuratorial organs, and concluded 53.’ In the long run, this ‘mode of law enforcement through social campaigns’ is not conducive to the full protection of civil public welfare. Furthermore, it will help to spread and develop the following adverse tendencies, namely, the relevant system is alienated into the utilitarian means for the procuratorial organs to pursue Parochialism.
Second, in the public interest litigations handled by the procuratorates at all levels, collateral civil public interest actions attached to criminal cases have a large proportion. ‘In judicial practice, collateral civil public interest actions attached to criminal cases are mainly concentrated in the fields of environmental and resource protection and food and drug safety, accounting for a high percentage of all public interest litigation types, occupying 75.21 percent of all public interest litigations between January and October of 2018.’ ‘At present, collateral civil public interest action attached to criminal cases has become an important type of environmental public interest litigations, and its specific litigation rules are gradually explored in practice.’ The main reasons for this phenomenon are as follows: ‘compared with pure civil public interest cases, it is easier for procuratorial organs to obtain evidence for collateral civil public interest actions attached to criminal cases. Therefore, most procuratorial organs combine criminal case with environmental civil public interest litigation, and only file collateral civil public interest action attached to a criminal case, which can effectively reduce the consumption of litigation time and litigation resources, and improve its efficiency at the same time.’ For example, it is reported that the People’s Procuratorate of Yushan District, Ma’anshan City, Anhui Province ‘established a joint case handling group composed of prosecutors of criminal prosecution and public interest litigation (environmental experts will be introduced if necessary) after the collateral civil public interest action attached to a criminal case is pending to a court. The public prosecutor can fully take advantage of the system of the procuratorial guiding police investigation to solve the headache of insufficient compulsory investigation power in the related civil case.’ As another example, according to Zhang Shouhui, Deputy Director of the Civil Prosecution Department of the Third Branch of Shanghai Municipal People’s Procuratorate, ‘Relying on the advantages of centralized jurisdiction exercised by Shanghai Railway Procuratorate and the Third Branch of Shanghai Municipal People’s Procuratorate in handling criminal cases of environmental and natural resource protection, as well as criminal cases of food and drug products, the department searches for clues of public interest litigation from those criminal cases. More than 60 criminal cases of the Third Branch of Shanghai Municipal People’s Procuratorate and of the basic level People’s Procuratorates under Shanghai Railway Procuratorate were sorted out one by one to see whether they caused serious environmental pollution and damaged the health rights of the unspecified majority of consumers.’ This paper holds the opinion that although handling collateral civil actions attached to criminal cases can protect civil public welfare to a certain extent and within a certain range, such cases are only a part of civil public interest cases, not all of them. If the procuratorial organs focus on dealing with such cases which are easy to yield political achievements for a long time, it may lead to the consequence of neglecting to handle other types of civil public interest lawsuits.
Third, for civil public interest litigations, due to various reasons, procuratorates at all levels often make use of the loopholes and ambiguities in the valid laws, to choose the case to sue. For example, since the unified management reform of the procuratorates under the provincial level, especially the basic procuratorates, has yet to be further and thoroughly promoted, their independence will still be affected by the local Party and government organs in the areas of staff appointment and removal, as well as budgetary allocations. Consequently, when local people’s procuratorates file public interest litigations, they tend to choose those cases that have little impact on local interests. As another example, ‘According to the system design of consumer civil public interest litigation, if the authorized organs and organizations failed to sue after being urged by the procuratorial organ, the procuratorial organ ‘may’ sue. The valid provisions endow the procuratorial organs with too much discretionary power and their corresponding duties are not legally stipulated, which causes the procuratorial organs to file consumer civil public interest litigations selectively.’ Meanwhile, in terms of environmental and natural resource protection, it is also possible for the procuratorate to select cases for prosecution. In addition, if the administrative organs are constantly blamed for their ‘sloth administration and inaction’, then the procuratorial organs at all levels are also plagued by the similar ‘sloth prosecution and inaction’. For example, according to the report of Science & Technology Daily on November 1, 2019, ‘In this August, the Standing Committee of the National People’s Congress deliberated on the inspection report on law enforcement of Water Pollution Prevention & Control Law, which listed 57 clues to 6 categories of problems, such as lagging behind in remediation of some blackened and odorous water bodies and obvious shortcomings in urban sewage treatment facilities and so on. Of these 57 clues, not a single procuratorial organ in the country took the initiative to intervene.’
Fourth, according to article 210 of the CPL, although the procuratorial organs have the power of investigation and evidence collection as well as the power of verification in the process of probing, filing and subsequently attending public interest litigations, article 210 fails to set the punitive liability for breach of corresponding obligations. Under that circumstance, when a natural person, a legal person or an unincorporated association is interrogated by the people’s procuratorate, it is really hard to expect the investigators could get sufficient favorable evidence by resorting to those two powers lacking coercive force. As the saying goes, ‘Evidence is always the crux for any party’s case.’ When they lack the capacity to investigate and collect sufficient evidence, we cannot expect the people’s procuratorates to bring their designated role of ‘public interest litigation prosecutor’ into full play. For example, it is reported that ‘civil public interest litigations in the field of food and drug, according to the valid law and judicial interpretation, can claim a series of civil liabilities such as stopping infringement, removing the obstruction, eliminating danger, making an apology, etc. However, in many cases, because the fake and shoddy, toxic and harmful products have long been forfeited by the public security organ or the possibility of recall has been lost. Therefore, the procuratorial organ can only file a claim of making an apology, which limits the function of public interest litigation.’ In addition, other related problems of evidence are yet to be stated clearly, too. For example, ‘is the power of investigation in the field of civil public interest litigation different from the power of investigation and verification in the field of judicial supervision procedure, the power of the court to obtain evidence, and the right of lawyers to investigate and collect evidence? Should the procuratorial organs be given the power to take compulsory measures such as seizure, garnishment and freezing the related property in the field of civil public interest litigations? When the procuratorial organ brings civil public interest litigation, will the inverted burden of persuasion provided by the Tort Liability Law of China be invoked accordingly?’ However, up to now, there are not any clear and authoritative answers to those doubts.
Fifth, as far as the procuratorial organ’s civil public interest litigation power is concerned, the theoretical interpretation of the relevant system is unsystematic and chaotic. According to the research of related scholars, this is mainly reflected in the following aspects:
Firstly, in the relationship between the prosecution power of public interest litigations and the monitoring power of judicial supervision procedure, the former belongs to the social governance type procuratorial system, with the maintenance of social public welfare as its main goal; the latter belongs to the procuratorial system of public power restriction, which aims at supervising the exercising activities of judicial power in line with laws. However, once these two kinds of powers are put into the public interest litigation, query on the justifiability of the role conflict will become unavoidable. The valid laws fail to provide a solution to that persistent conflict of roles.
Secondly, in the aspect of litigation claims, there are two major doubts yet to be clarified: one is whether the procuratorial organs can claim punitive damages in the public interest litigations of food safety; the other is whether the procuratorial organs can claim compensation for spiritual damage in the public interest litigations for the protection of remaining rights of deceased heroes and martyrs.
Thirdly, in the trial procedures of the second instance, there are two main unresolved puzzles: one is the way the procuratorial organ initiates the appellate procedure; the other is the problem of the procuratorial organ sending personnel to attend the appellate trials. In terms of this issue, article 11 of the Interpretation of Procuratorial Public Interest Litigation adopts the compromise mode of ‘reconciling differences regardless of principles’, which provides that the procuratorates who file public interest litigation shall send its staff appear in court, and the procuratorate at the next higher level may also send personnel to participate. However, there are loopholes on the litigation status, rights and obligations, the assumption of the burden of persuasion and other issues of the two procuratorial organs in the trial procedure of the second instance respectively.
Fourthly, from the perspective of the realization mode of the pre-action procedure of the procuratorial organs, the normative documents in the pilot period all take urging the authorized organs to sue, suggesting the authorized organizations to sue, and supporting the case-filing activities as 3 rightful ways to implement the said pre-action procedure. However, the Interpretation of Procuratorial Public Interest Litigation takes the pre-action announcement as the unified and the sole realization mode of the said pre-action procedure. At present, before launching civil public interest litigation, should the procuratorial organ inform the authorized administrations and organizations to file a lawsuit by the unified way of making an announcement? Or can we continue to use procuratorial suggestions in writing to urge the statutorily authorized organs and organizations to file their lawsuits? In addition, whether the public interest litigations for the protection of remaining rights of deceased heroes and martyrs need to perform the said pre-action procedure or not? If so, how to achieve it? As far as these doubts are concerned, there is no unified understanding at present.
Fifthly, from the perspective of the relationship between the pre-action procedure and the litigation procedure, the pre-action procedure has the function of case division and filtering, which can preserve judicial resources and prevent the procuratorial organs from abusing the suing power. The suing power of the procuratorial organ in civil public interest litigations has the features of postpositive, modest and subsidiary, and should be in a passive order of readiness just in case. The litigation procedure provides backing for the realization of the function of the pre-action procedure. However, the valid laws do not provide specific rules and coordination schemes for the connection between pre-action procedures and litigation proceedings, and procuratorial organs in different regions attach different importance to the pre-action procedure and its operation mode.
Sixthly, in what types of cases may the procuratorial organ file collateral public interest litigation? When the procuratorial organ lodges collateral civil actions attached to criminal cases, does it need to perform the said pre-action procedure? And how to appoint the staff to handle the case? If the procuratorial organ chooses to launch collateral public interest litigation amidst a criminal trial, will that practice inappropriately deprive the authorized NGOs of their right of suing in the name of promotion of judicial efficiency? How to design the relationship among criminal, civil and administrative litigation in the procedure, and the sequence of their handling and the integrated system of interlink among them?
In view of the above undetermined puzzles, the system of civil public interest litigation launched by the procuratorate is far from perfect, and its application in practice will also lead to the problem of inadequate public welfare protection.
D. Insufficient Protection by Authorized Entities Means Probabilities for Citizens to File Civil Public Interest Litigation
By examining the preceding parts of this paper, we can see that there are three kinds of authorized entities who can file civil public interest litigations, and they are all troubled by the problem of insufficient protection of the related public interests. Specifically, for authorized administrative organs and people’s procuratorates, there is always the possibility of ‘government failure’. And for authorized NGOs, there is also the persistent possibility of ‘voluntary failure’. Meanwhile, because the market economy is only suitable for protecting those private rights aiming to make profits, but unsuited to protect the public interests with strong ‘external diseconomy’. Hence, the protection of public interests is also constantly nagged by the phenomenon of ‘market failure’. In the meantime, as far as public welfare protection is concerned, there is still the problem of ‘legal institution failure’. This is mainly manifested in two aspects:
First, as for public welfare affairs, the Constitution of China, the EPL, the LPCRI and other laws clearly announced that citizens have the rights to participate (such as the right to supervise, the right to report and the right to complain, etc.). However, these rights are too principal and general to be used for dealing with concrete issues, and all of them also are devoid of specific and feasible supporting institutional arrangements. For example, ‘China’s EPL sets up a chapter on information disclosure and public participation, which confirms that citizens have the right to participate in and supervise environmental management and report environmental violations, but there is no clear provision on the specific participation procedures. When citizens’ environmental participation right is harmed, the relief measures and the liability of perpetrators are not provided in detail. The environmental participation right of citizens is declared, but there is no relevant design for that right, which also makes the right fall into an embarrassing situation.’
Second, although the CPL of China set up the system of the represented action for the protection of a wide range of collective private interests, it mainly based on the following two factors, that system has been ignored by the courts at all levels for years: Firstly, the need to maintain political stability. ‘In addition to the defects in the design of that system, the political orientation of the court also seriously hindered the usage of represented litigation. When dealing with large scale group disputes, the court consciously disperses the cases and implements the strategy of ruling upon dividing, which can prevent the situation from deteriorating even further, restrain the intensification of the related conflicts, and play a political role of stability and unity. In the case of Yinguangxia, the SPC even explicitly prohibited the application of the represented action through a judicial interpretation.’ Secondly, there are some defects in the existing authorization and supervision system of the represented action. For example, the law of China stipulates that in this type of action, all members of one side that selected 2 to 5 representatives shall supervise their litigation behaviors and activities themselves, not through the case-pending court. This mechanism is obviously lack of operability. As another example, according to valid laws, the consent of all the represented group members must be obtained before the representatives could change or abandon their jointly-filed claims or admit the claims of the opposing party, or try to reach a private settlement with the other litigators in the same case. Due to the highly decentralized state of the members of the represented group, it is not only very difficult to use such provisions, but also the related cost will become unbearably expensive, which would have a reversed incentive effect on the selected litigation representatives.
As a sign of awareness of these problems, the SPC recently publicized a new judicial interpretation (Provisions of SPC on Certain Matters concerning the Represented Actions of Security Disputes). Apparently, its goal is try to activate this long dormant system of represented actions. However, people still need to carefully observe and wait to see how its real application effect is in the coming days.
All in all, under the combined influence of the above-mentioned ‘government failure’, ‘voluntary failure’, ‘market failure’ and ‘legal institution failure’, the judicial protection of public welfare through the currently authorized entities is far from sufficient and satisfactory. In order to solve this problem, ‘The private enforcement strategy of public rules may become an effective social choice.’ In another word, in order to offer civil public interest a better protection, Chinese legislators should reserve opportunities and leeway for citizens to file this type of litigations in the future.
III. THE STATUS QUO OF LAWSUITS INVOLVING PUBLIC WELFARE INITIATED BY CHINESE CITIZENS
In China’s judicial practice, as a matter of fact, there have been cases involving civil public interests initiated by our citizens for a long time. For example, according to the statistics provided by scholars, by the end of 2012, China’s courts at all levels have accepted 53 environmental public interest litigations. Among them, 6 environmental public interest lawsuits were filed by citizens, and 1 environmental public interest lawsuit was jointly filed by environmental protection organizations and individuals. As another example, on January 30, 2019, Wang Ying, a student from East China University of political science & law, visited Shanghai Disneyland. When entering the park, Wang Ying was stopped by the staff for carrying her own food and drinks in the bag. After the communication failed, Wang Ying could only leave the food and drinks outside the park and bought herself meals at a price significantly higher than the market price after entering Disneyland. In this regard, Wang Ying believes that Shanghai Disneyland has infringed on her lawful rights and interests, and filed a lawsuit with Pudong People’s Court, demanding that the standard clause of Shanghai Disneyland forbidding tourists to bring food and drinks into the park is invalid, and compensating for her total loss of 46.3 yuan. As a third example, according to People’s Court Daily on December 22, 2018, ‘the minimum cost of a single way subway ride is only 2 yuan, and the card balance is 7.1 yuan. However, when entering the station, she was blocked by the ticket checking machine. Therefore, a senior female student of Suzhou University sued Suzhou Rail Transit (SRT) in court.’
As for the former case, the plaintiff and the defendant resolved their disputes by way of private settlement: on the one hand, Shanghai Disneyland compensated the plaintiff 50 yuan. On the other hand, the defendant promised in writing that it would revise the unreasonable admission rules. From September 11, 2019 onwards, Shanghai Disneyland officially announced that tourists were allowed to bring their own food and drinks into the park. As for the latter case, after mediation by Suzhou Intermediate People’s Court, the SRT agreed to revise and implement its regulations according to the principle of riding SRT trains with the minimum card balance of 2 yuan before the end of 2019. After the mediation agreement drafted by the said intermediate people’s court took effect, the scope of the beneficiary has already extended to all the passengers taking SRT trains.
Theoretically, the above-mentioned lawsuits initiated by citizens can be referred to as Civil Litigations with Mixed Private and Public Interests Impact (CLMPPII). In terms of this type of cases, we need to pay attention to the following four features:
First, the so-called ‘mixture of public and private interests’ here has a special meaning, that is, compared with the plaintiff’s injunctive public interest desire which points to the future, its private interest request to the past damage is but symbolic. As far as the plaintiff is concerned, the main reason for the plaintiff to file that nominal private interest claim is to realize the ultimate goal of protecting the relevant public welfare by applying the existing form of private interest litigation, that is, ‘egoism on the surface, but altruism in the core’.
In the past two or three decades, there is a chain of CLMPPII cases having been decided by the judiciary of China. For example, the 1996 lawsuit between Qiu Jiandong and the related provider of telecommunication service is generally acknowledged as the first case of New China’s public interest litigation, the case between Ge Rui, a young adult of Henan province, and Zhengzhou railway station for the latter’s unreasonable charge for its public toilet use, the litigation between Qiao Zhanxiang and the then Ministry of Railways on the lawfulness of the latter’s fare increase during the Spring Festival travel rush, the case of Qiu Jiandong v. Beijing Subway (BS) for the latter’s groundless charge for toilet use, the 2004 lawsuit between Hao Jinsong and the BS for the latter’s unreasonable charge for toilet use, the case against Beijing Railway Administration (BRA) for not providing receipts after passengers enjoyed their meals within the area of BRA facilities, the lawsuit against the improper inter-bank inquiry fee borne by Union Pay cardholders, etc. In these cases, the plaintiffs did put forward a private interest claim to the court, but the amount of compensation involved in that claim is often very small (such as 1.2 yuan, 1 yuan, 30 cents, etc.), and many of them are just symbolic. For example, in the case of Qiu Jiandong suing the shipping company, the plaintiff’s private interest claim is to ask the defendant to return 3 yuan of unloading fee which was unreasonably overcharged.
Second, CLMPPII litigations are particularly useful for the protection of the following public interests: using food and drug additives abusively which are detrimental to customers’ health or having unknown consequences on the human body, false advertising, promoting the sale of products while concealing their important information, ‘one-sided clauses’ in standard contracts, various unfair but skillful commodity or service promotions, such as ‘price war’ or ‘coupon giving after sales’, disputes caused by the failure of the owner of shared bikes to refund the account balance and deposit owned by the riders of its bicycles, as well as the universal headache of applying for public transit card refund in many cities, etc.
Third, the multiply purposes for plaintiffs to file CLMPPII lawsuits are: to protect law and order in a given society through the trial of a specific case, to express dissatisfaction either with the contents of related laws, or with the ways for their implementation, to enable our citizens to effectively lay restraints on state organs or other public authorities in the capacity of the plaintiff, and to supervise the correct application of relevant laws and regulations. Last but not least, by launching CLMPPII litigations, plaintiffs will become famous, iconic figures in a short period of time.
Fourth, since the plaintiff of the CLMPPII case has put forward the public interest request to the court, whether it wins or loses, the effective judgment made by the court will have the binding force of res judicata on the related public interests. In addition, when this kind of plaintiff wins the lawsuit, it should have the effect of reflection (Relexwirkungen von Urteilen) on the follow-up litigations (whether it is the litigation to protect the related private interest, or the public interest litigation covered by article 55 of the CPL). It means that as for the adjudged gist of the effective judgment of the former lawsuit, the court hearing follow-up litigations should make judicial notice ex officio. In other words, the court of follow-up cases must take the part governed by the binding force of res judicata in the previous judgment as one of the necessary premises for it to make its own judgment.
Alongside the above-mentioned CLMPPII cases, there is another parallel developing trend that cannot be ignored, and that is, some judicial interpretations and local normative documents in China have already authorized our citizens to file certain types of civil public interest litigations. For example, article 1 of SPC’s Certain Provisions on How to Apply Laws in the Trials of Anti-Monopoly Cases authorized citizens of China to launch anti-monopoly civil lawsuits. ‘Antitrust activities aim to maintain market competition, achieve economic mutual benefit, and to a certain extent, can play a role in protecting the interests of unspecified majority of consumers. The judicial interpretation recognizes the individual’s competency to file a lawsuit against monopoly behaviors existing in the market, and also directly endows citizens with the right to file relevant civil public interest litigations.’ As another example, article 6 of Implementation Opinions of Hainan High People’s Court on Pilot Civil Public Interest Litigation of Environmental Resources provides that ‘The following state organs, social organizations or parties of civil transaction may file environmental public interest litigation: … (vi) Citizens.’
According to the above discussions, as a necessary supplement to the public interest litigations launched by entities authorized by article 55 of the CPL, the existence and development of civil public interest litigations initiated by individuals is reasonable. On this premise, the next academic research and legislative activities should focus on the following issues: First, give CLMPPII litigations a reasonable and systematic theoretical analysis, and on this basis, improve and perfect its various systems. Second, from the perspective of theoretical research and system reconstruction, how to integrate and connect the civil public interest litigations brought by citizens based on certain judicial interpretations and the civil public interest litigations based on article 55 of the CPL? Third, to resolve the conflicts and realize the mutual coordination and support among CLMPPII litigations, a few civil public interest litigations lawfully initiated by citizens and the civil public interest litigations governed by article 55 of the CPL, so as to realize the maximum effect of the judicial protection of the relevant public interests.
While this preliminary research on the possibility of Chinese citizens’ right to file lawsuits concerning public interests draws the above conclusions, more research on those ideas is required.