Public interest litigations system in need of revamping

[社论]检察机关提起公益诉讼有待制度探索

Source: 南方都市报

Editor’s note

This is our translation of an editorial of Southern Metropolis Daily, which discusses cases of public interest litigations in which the public prosecution acts as the plaintiff. There have recently been quite a few such cases in China, as a result of new government policies. 

 

The Supreme People’s Procuratorate recently held a press conference on “public prosecution litigations” during which it presented five guiding cases. These were respectively the civil litigation case of Xu Jianhui and Xu Yuxian, who were sued by the Changzhou city Procuratorate in Jiangsu Province; the civil public interest case of the Health and Family Planning Bureau and the Hospital of traditional Chinese medicine attached to the civil administration in Jiangyuan District, Baishan City, which were sued by the Baishan City Procuratorate in Jilin Province; the administrative public interest litigation case of the Yunyang District Forestry Bureau, sued by the Yunyang District Procuratorate in Shiyan City, Hubei Province; the administrative public interest litigation case of the Environmental Protection Bureau of Qingliu County, sued by the Qingliu County Procuratorate in Fujian Province; and the administrative public interest litigation case of the Environmental Protection Bureau of Jinping County, sued by the Jinping County Procuratorate in Guizhou Province.

The phenomenon of procuratorial organs filing public interest litigations actually presents two questions: the first is why there should be public interest litigations at all, and the second is what role the procuratorial organs should play in public interest litigations.

In real life, a lot of actions and events which harm the public interest are ignored and overlooked because there is no appropriate entity to bring about a litigation, reflecting the “tragedy of public interest”. This is how the concept of “public interest litigation” comes about. Due to the weak strength of most social organizations in China however, evidence is hard to obtain. Once you add the embarrassing possibility of the case not being accepted by the courts, the effectiveness of “public interest litigations” is indeed not fully satisfying. Under this context, the <Decision of the Central Committee of the Communist Party of China on several important issues for comprehensively promoting the rule of law>, released in October 2014, explicitly proposed exploring the establishment of public interest litigation systems. In July 2015, the National People’s Congress authorized the Supreme People’s Procuratorate to initiate public interest litigations in the areas of the environment and resource protection, the protection of state-owned assets, the transfer of state-owned land use rights, food and drug safety and other areas. Subsequently the Supreme People’s Procuratorate issued the <Reform Pilot Program for procuratorial organs to initiate public interest litigations>.

How effective has the public interest litigation reform initiated by the procuratorial organs been? Although the reform is still in its pilot phase, the Supreme People’s Procuratorate has now held this press conference and publicized five cases which constitute very good examples. This can provide guidance for the next step of the pilot work, and also be regarded as a summary of the first stage.

The responsible persons of the Supreme People’s Procuratorate disclosed during the press conference that from July 2015, when the National People’s Congress Standing Committee gave its authorization, until the end of December 2016, the procuratorial organs within the pilot areas have handled 4,378 cases of public interest litigation, and filed 495 litigation cases; the courts have brought 32 cases to conclusion, including 28 cases for which a judgement was passed. Without exception, the courts upheld the appeals of the prosecutors. The data has eloquently proved that the procuratorial organs have a natural advantage when they act as the subjects of public interest litigations. However, it will require persistent exploration to find out how to give full play to these advantages, how to accumulate enough experience through pilot plans to establish a new system of public interest litigation, and how to completely align the system with the current laws.

Translated by Ma Xiaohua

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