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Class Actions and Public Interest Litigation in China

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Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT,volume 89)

Abstract

China has two major judicial reliefs against large-scale rights’ infringements. One, established in 1991, is a mass private interest action under which the victims of mass harm can opt-in and join the plaintiff class in representative litigation. The plaintiff class selects their representatives who participate in the trial. The plaintiffs are bound by the judgment. The victims who did not join the plaintiff class may sue separately, but in separate litigation the class judgment is usually applied as a ‘model-litigation’. This type of judicial relief was not sufficiently effective, which led to legislative changes and the establishment of another type of collective relief. In 2012, a new form of collective relief, called ‘public interest litigation’ was established. In public interest litigation the procurator and some other legally authorized social organizations act as plaintiffs in cases of environmental harm and mass infringement of consumer rights. An individual consumer is not allowed to file a public interest lawsuit, in spite of the fact that the legally authorized plaintiff entities often lack motivation to file such claims. Apart from these two means of collective redress, this contribution also addresses the main features of a new, opt-out type of class action established by the Securities Law at the end of 2019.

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Notes

  1. 1.

    The case of Yue-Yang seed, see Wei and Changchun (1988), pp. 84–91.

  2. 2.

    In the late 1980s American experience kickstarted the adoption of class action procedures in the CPL. However, China’s class action institution mainly took Japanese law as model. See Wei and Jianguo (1994), pp. 3–4.

  3. 3.

    Xinhuanet (2020) Sanlu infant milk powder incident tracking report. http://www.xinhuanet.com/newscenter/ztnfsj/sjjj.htm; Baidu Baike (2020) Contamination of Dairy products in China. https://baike.baidu.com/item/%E4%B8%AD%E5%9B%BD%E5%A5%B6%E5%88%B6%E5%93%81%E6%B1%A1%E6%9F%93%E4%BA%8B%E4%BB%B6/86604?fr=aladdin.

  4. 4.

    This scandal led to serious criminal punishment of the senior managers of Sanlu company, removal of the head of Hebei province in which company was located and the removal of the head of the AQSIQ, apology of the head of China, and enactment of a series of laws including the Regulations on Supervision and Administration of Quality Safety of Dairy Products and the Food Safety Act.

  5. 5.

    According to Hong Kong-based Ta Kung Pao, on September 14 the lawyers were required not to get involved in the contaminated milk case, stressing that the government has done a lot of work and asked them to “obey the overall situation and maintain stability”, and not to get too involved in the Sanlu milk powder incident.

  6. 6.

    China Enterprise Advisory Network (2009) Sanlu defective milk powder compensation plan unveiled. http://www.cction.com/info/200901/10684.html.

  7. 7.

    Court of China (2005). The Court of China has settled a lawsuit involving a group of farmers. https://www.chinacourt.org/article/detail/2005/05/id/162430.shtml.

  8. 8.

    Sina net (2005). 4000 Peach farmers suing ‘peach vendors’ for debt. http://news.sina.com.cn/s/2005-01-11/21474795014s.shtml.

  9. 9.

    Database of Chinese Trial Cases. http://www.chncase.cn/case/bulletin/1085566.

  10. 10.

    China Court Website (2005).Qinghai province successfully mediated a lawsuit brought by an environmental pollution group. https://www.chinacourt.org/article/detail/2005/05/id/161755.shtml.

  11. 11.

    Civil Judgment No. 1216 of Xishan District People’s Court of Wuxi City, Jiangsu Province (2009); Civil judgment No. 587 of Fushun Zhongfa Zhongfa Zhongzi No. 1 of Intermediate People’s Court of Foshan City, Guangdong Province (2010).

  12. 12.

    Kunming Municipal Environmental Protection Bureau (supported by the Kunming People’s Procuratorate) vs. Kunming Sannong & Agriculture and Animal Husbandry Co., LTD. for environmental pollution infringement, See Civil Judgment No. 41 of Yunnan Higher People’s Court (2011).

  13. 13.

    Article 25(4) of the Administrative Litigation Law (ALA): ‘Where the people’s procuratorate finds in the performance of functions that any administrative authority assuming supervision and administration functions in such fields as the protection of the ecological environment and resources, food and drug safety, protection of state-owned property, and the assignment of the right to use state-owned land exercises functions in violation of any law or conducts nonfeasance, which infringes upon national interest or public interest, it shall offer procuratorial recommendations to the administrative authority, and urge it to perform functions in accordance with the law. If the administrative authority fails to perform functions in accordance with the law, the people’s procuratorate shall file a lawsuit with the people’s court in accordance with the law.’

  14. 14.

    Provision of the SPP, 2015.7.2.

  15. 15.

    Economic Daily (1996), front page.

  16. 16.

    The Marine Environmental Protection Act was enacted in 1982 and amended in1999, 2013, 2016, and 2017.

  17. 17.

    See Provisions of the Supreme People’s Court on Several Issues concerning the Trial of Cases Involving Disputes over Compensation for Damage to Marine Natural Resources and Ecological Environment (taking effect on Jan 15, 2018).

  18. 18.

    In China, several amendments of the Organic Law of Procuratorate have been always at the same time; and the amendments in 2018 were considered systematic revisions which adopted the achievements of the judicial reforms of the past 20 years. The new authority of PIL for the procuratorate is very important to civil litigation because it substantially changed the traditional structure that the civil litigation are private action and had never been filed by a public organ; but it may not so important as compared with the other amendments in of the Organic Law of Procuratorate. In addition, regarding the constitutional position of the procuratorate and its role in civil litigations, see Yulin (2012), pp. 176–185. For the discussion on the suitability of the procuratorate as a plaintiff in civil public interest litigation, see Hao (2017), pp. 168–181; Liming (2011), pp. 134–140.

  19. 19.

    See Yanmin (2000), pp. 161–175.

  20. 20.

    Art. 55 CPL was enacted on 31 August 2012 and amended again on 27 June 2017. The coming into force was several months later.

  21. 21.

    Enacted on 25 October 2013.

  22. 22.

    Enacted on 24 April 2014.

  23. 23.

    Enacted on 4 November 2017.

  24. 24.

    SPC, 4 February 2015. See Arts 284–291.

  25. 25.

    SPC, 7 January 2015.

  26. 26.

    SPP, 2 July 2015.

  27. 27.

    SPC, 24 April 2016.

  28. 28.

    SPC, 1 April 2017.

  29. 29.

    SPC & SPP, 1 March 2018.

  30. 30.

    SPC, 5 June 2019.

  31. 31.

    SPC & SPP, 25 November 2019.

  32. 32.

    Weiping (2013), pp. 17–20.

  33. 33.

    Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Civil Public Interest Actions regarding Consumption, No. 10 [2016] of the SPC.

  34. 34.

    Civil Ruling of Petition No. 3377 of the Supreme People’s Court (2015).

  35. 35.

    See Art 47 Consumer Law. The autonomous regions (such as Tibet and Xinjiang) and the municipalities which are directly under the Central Government (such as Beijing and Shanghai) are on the same level of provinces.

  36. 36.

    SPC, 24 April 2016.

  37. 37.

    Xiaoren (2018), 005 edition.

  38. 38.

    Shuya (2017), 003 edition.

  39. 39.

    Gu (2015), pp. 16–33.

  40. 40.

    The problem of judges relying too much on expert opinions in environmental civil public interest litigation is also a serious problem, see Dun (2018), pp. 344–345; Gu (2015), pp. 16–33.

  41. 41.

    Civil Administrative Procuratorate of the Supreme People’s Procuratorate (2017), pp. 69–78. The remaining 2.1% relate to incomplete replies.

  42. 42.

    Civil Administrative Procuratorate of the Supreme People’s Procuratorate (2017), pp. 69–78.

  43. 43.

    SPC & SPP, 1 March 2018.

  44. 44.

    Jun (2019) Report of the Supreme People’s Procuratorate on the Procuratorial work on public Interest Litigation—delivered at the 2nd Session of the Standing Committee of the 13th National People’s Congress on October 23, 2019. http://cpc.people.com.cn/n1/2019/0320/c64094-30984797.html.

  45. 45.

    Zhou Qiang (2018) Report of the Supreme People’s Court – delivered at the first session of the 13th National People’s Congress on March 9, 2018, http://www.court.gov.cn/zixun-xiangqing-84292.html; https://www.spp.gov.cn/tt/201903/t20190312_411422.shtml.

  46. 46.

    http://www.china-cer.com.cn/guwen/202006025548.html.

  47. 47.

    Liu Wenhui (2017) Consumer Public Interest Litigation: Declaring War on Dishonest Enterprises. http://www.spp.gov.cn/zdgz/201703/t20170322_185995.shtml.

  48. 48.

    Civil Administrative Procuratorate of the Supreme People’s Procuratorate (2017), pp. 69–78.

  49. 49.

    China Consumers Association (2020) Map of the Association. http://www.cca.org.cn/map/index.html.

  50. 50.

    See Chen Hongwei (2015). One typical case which demonstrates this view is the case submitted by the owner of Volkswagen Sagitar against China Consumer Association, that was rejected by Haidian Court, http://www.china.com.cn/legal/2015-03/26/content_35160989.htm; see also Huang Che v. the Inner Mongolia Autonomous Region Administration for Industry and Commerce, Administrative confirmation of the final judgment No.61 of Huhehaote Intermediate People’s Court (2017).

  51. 51.

    Civil judgment No. 86 of Tonghua Intermediate People’s Court (2017).

  52. 52.

    Zhang Jun (2019) Report of the Supreme People’s Procuratorate on the Procuratorial work on public Interest Litigation—delivered at the 14th Session of the Standing Committee of the 13th National People's Congress on October 23, 2019. http://cpc.people.com.cn/n1/2019/0320/c64094-30984797.html

  53. 53.

    The ‘Railway Bureau’ was a government organ before it was transformed into free market institution in 2010s.

  54. 54.

    From May to July 2014, Zhejiang Province Consumer Association received complaints from several customers who bought tickets under their real names and were forced by station staff to buy another ticket after they lost their tickets accidentally. The association contacted the Shanghai Railway Bureau by telephone and mail to investigate and verify consumer complaints and the basis of the policy and requested a refund for the consumers, but was responded that, according to Article 43 of the Railway Passenger Transport Regulations, the policy is compliant to relevant regulations.

  55. 55.

    Liu Wenhui (2017), Consumer Public Interest Litigation: Declaring War on Dishonest Enterprises. http://www.spp.gov.cn/zdgz/201703/t20170322_185995.shtml.

  56. 56.

    Civil judgment No. 1723 of Guangzhou Intermediate People’s Court (2015).

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Fu, Y. (2021). Class Actions and Public Interest Litigation in China. In: Uzelac, A., Voet, S. (eds) Class Actions in Europe. Ius Gentium: Comparative Perspectives on Law and Justice, vol 89. Springer, Cham. https://doi.org/10.1007/978-3-030-73036-9_16

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