Abstract
China has created three litigation systems for environmental public welfare relief: civil environmental public interest litigation (civil EPIL), administrative environmental public interest litigation (administrative EPIL), and ecological and environmental damage compensation litigation (EEDCL). First, judicial power intervenes in environmental public welfare protection and performs its duties instead of the government, which will lead to a misalignment of judicial power and administrative power. After the EEDCL emerged, the overlap with the civil EPIL system exposed the shortcomings of the existing ternary litigation model. The basis of claims for ecological and environmental damage compensation is not the national ownership of natural resources or the responsibility of environmental supervision, but the environmental public interest. There is no significant difference between these two kinds of litigation in terms of value objective, system function, basis of claim, object of relief, object of litigation, etc. The coexistence is unnecessary. Administrative EPIL should be retained, and environmental protection organizations could be added as plaintiffs. The civil EPIL system should be removed, and “EEDCL” should be replaced with “ecological environmental damage public interest litigation”. As the plaintiff, the government can request judicial relief, and the pre-consultation procedure should be retained. The plaintiff’s proof rule should be adopted, and the introduction of a punitive damage compensation mechanism should be considered.
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Notes
- 1.
For details, please refer to Articles 1234 and 1235 of the Civil Code of the People’s Republic of China.
- 2.
In China, the judiciary in a broad sense includes courts, procuratorates, public security organs, judicial administrative organs, and state security organs. Courts and procuratorates are judicial organs that specifically exercise adjudication and procuratorial powers. Although the latter three belong to the administrative organs, they also assume some judicial functions. The narrow sense of the judiciary refers specifically to the courts. The term “judicial organs” here refers specifically to the courts.
- 3.
Xi (2016), p. 103.
- 4.
Quoted from Houfu (2006), p.32.
- 5.
Bixin (2019), p. 50.
- 6.
Paragraph 2 of Article 6 of the EPL stipulates: “Local people’s governments at all levels shall be responsible for the environmental quality of their respective administrative regions.”
- 7.
Court decisions for these cases are available at the legal database ‘China Judgements Online’. See https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=2fae6a88799248408c41a923009abfac; https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=904cf1840d84459eaa00a8b300b06484; https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=1689340450e24cb2bd99f83543735738.
- 8.
In this case, the court ordered the defendant to compensate the total cost of environmental remediation of 160,666,745.11 RMB and pay 100,000 RMB for appraisal and assessment costs.
- 9.
Ganjie (2017), p. 1.
- 10.
Jing (2015), p. 1.
- 11.
Article 18 of the “Environmental Civil Public Interest Litigation Judicial Interpretation” determines that the defendant’s liability methods include “stopping infringement, removing obstacles, eliminating danger, restoring the original state, compensating for losses, and making apology, etc.”. Article 11 of the “Several Provisions” determines that in such a lawsuit, the defendant can be sentenced to “undertake civil responsibilities such as restoring the ecological environment, compensating for losses, stopping infringement, removing obstacles, eliminating danger, and making an apology.”
- 12.
Article 20 of the Judicial Interpretation of Environmental Civil Public Interest Litigation stipulates: “If the plaintiff requests restoration to the original state, the people’s court may judge the defendant to restore the ecological environment to the state and function before the damage occurred. If it cannot be completely restored, alternative restoration may be allowed.
- 13.
Zejian (2002), p. 35.
- 14.
Haiyong (2015), p. 53.
- 15.
The thinking method of the “basis of the right of claim” includes four steps: (1) Truly understand the facts of the case; (2)In response to the questions raised, shuttle back and forth between the facts of the case and the legal norms; (3)Concretize the problems, eliminate useless facts and select the basis of the claim for key facts of the cases; (4) Decompose and encompass elements of the basic of the right of claim.
- 16.
Shuyi and Huaqi (2018), p. 71.
- 17.
Song Lirong (2018), p. 8.
- 18.
Gu (2014), p. 142.
- 19.
Article 1 of the “Several Provisions”: Under any of the following circumstances, the provincial, municipal governments and their designated relevant agencies, or the departments entrusted by the State Council who exercises the ownership of natural resource assets owned by all Chinese people can file a lawsuit for compensation of ecological environment damage as plaintiffs, if they fail to reach an agreement or are unable to conduct negotiation with the legal persons or other organizations who have caused ecological damage:
-
1.
In the event of a relatively large, major or particularly major environmental emergency;
-
2.
Environmental pollution and ecological destruction events occur in key ecological functional areas and prohibited development areas designated in the national and provincial main functional area plans;
-
3.
Other serious consequences affecting the ecological environment occur.
The municipal governments specified in the preceding paragraph include cities divided into districts, autonomous prefectures, leagues, and regions, prefecture-level cities not divided into districts, and district and county people’s governments of municipalities directly under the Central Government.
-
1.
- 20.
Jin (2018), p. 40.
- 21.
Yucheng (2019), p. 87.
- 22.
Xiaoxia (1998), p. 34.
- 23.
Lihong (2000), p. 56.
- 24.
Li (2011), p. 133.
- 25.
Jinzhao (2011), p. 111.
- 26.
Stewart (2002), p. 21
- 27.
Pézier (2002), p. 15–17.
- 28.
Baker and Wilms (2001), p. 119.
- 29.
Mingyuan (2016), pp. 58–64.
- 30.
Tao (2016), p. 37.
- 31.
Bao (2017), p. 17.
- 32.
Hao (2019), p. 60.
- 33.
Shouqiu (2013), p. 7.
- 34.
Tao (2007), p. 6.
- 35.
Zhongmei (2000), p. .92
- 36.
Yingfu and Xisheng (2018), p. 35.
- 37.
Zhongmei (2000), p. 103.
- 38.
Xiaobo (2019), p. 40.
- 39.
Xi (2016), p. 114.
- 40.
Shijun (2007), p. 9.
- 41.
Dong (2004), p. 90.
- 42.
Mingyuan (2016), p. 51.
- 43.
Shan (2017), p. 108.
- 44.
Jiang (2020), p. 145.
- 45.
Chengdong (2008), p. 183.
- 46.
Fei and Yonghe (2020), p. 61.
- 47.
Yi (2017), p. 16.
- 48.
In China, in ordinary civil or criminal proceedings, the rule of proof in litigation is “who claims, who gives evidence”, that is, the plaintiff proves the cause of his claim. However, in administrative litigation, considering the defendant’s superior evidentiary strength over the plaintiff, the defendant’s evidentiary rule is adopted.
- 49.
Yingping (2012), p. 91.
- 50.
Weijian (2015), p. 3.
- 51.
Shouqiu (2013), p. 7.
- 52.
Jun (2008), p. 96.
- 53.
Haisong (2018), p. 24.
- 54.
Yixiang and Xingyu (2018), p. 89.
- 55.
Article 6 of the Several Provisions of the Supreme People’s Court on the Trial of Cases Involving Compensation for Ecological Environment Damage (Trial Implementation) provides: “If the plaintiff claims that the defendant bears the liability for compensation for ecological environmental damage, it shall bear the burden of proof on the following facts:
-
(1)
The defendant has committed acts of polluting the environment or damaging the ecology, or has other circumstances that should bear responsibility in accordance with law;
-
(2)
The damage to the ecological environment, as well as the specific amount of restoration costs needed, damage compensation, and so forth;
-
(3)
There is a correlation between the defendant’s behavior of polluting the environment, destroying the ecology and damage to the ecological environment.”
-
(1)
- 56.
Article 6 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Environmental Tort Liability Dispute Cases stipulates: “Where the infringed party requests compensation in accordance with Article 65 of the Tort Liability Law, it shall provide evidentiary materials proving the following facts:
-
(1)
The polluter has discharged pollutants;
-
(2)
Damages suffered by the infringed party;
-
(3)
There is a correlation between pollutants or secondary pollutants discharged by polluters and damage.”
-
(1)
- 57.
Article 11 of the “Several Provisions” stipulates: “Where the defendant violates laws and regulations to pollute the environment and damage the ecology, the People’s Court shall, according to the plaintiff’s claims and the specific circumstances of the case, reasonably order the defendant to undertake the restoration of the ecological environment, compensate for losses, stop the infringement, remove obstacles, eliminate danger, apologize and other civil liabilities”.
- 58.
Zhongmei (2017), p. 11.
- 59.
Shouqiu and Yi (2018), p. 61.
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Bo, X. (2023). From the Ternary Model to the Binary Model: On the Reconstruction of Litigation Systems for Environmental Public Interest. In: Wang, X., Zhao, X., McNamara, N. (eds) Environmental Public Interest Litigation in China. Springer, Cham. https://doi.org/10.1007/978-3-031-26526-6_16
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