8.1 What Is Civil Public Interest Litigation

With China’s rapid economic development and social transformation, environmental pollution, infringement on consumers’ rights and interests and infringement on other public interests occur from time to time. In practice, the measures to curb these phenomena are, on the one hand, resorting to administrative punishment, i.e., the law enforcement by administrative authorities, and on the other hand, imposing criminal responsibility, i.e., if the act constitutes a crime, the offender will be held criminally responsible. However, neither administrative nor criminal measures can hold the tortfeasor civilly liable, such as claiming damages against the tortfeasor.

In order to solve this problem, the Supreme People’s Procuratorate, as early as 1999, has required local procuratorates to try to bring a lawsuit against civil-law violations that infringe on national and/or public interests. However, China has not yet formulated any law on the public interest litigation, though there have been some public interest litigation cases in practice.

In 2012, China revised the CPL to stipulate that authorities and relevant organizations stipulated by the law may bring a lawsuit with the court against environmental pollution, infringement on consumers’ rights and interests and other acts against the public interest. Although there is only one provision in the CPL, it marks China’s official establishment of the civil public interest litigation system. Since then, the SPC has successively formulated several special judicial interpretations for the civil public interest litigation on environmental pollution and infringement on consumers’ rights and interests.

So far, China has initially established a civil public interest litigation system. Compared with the private interest litigation, the public interest to be protected by the public interest litigation is an aggregation of private interests; however, the aggregated private interests, though composed of specific individual interests, are relatively abstract and generalized, and it is often difficult to identify the specific right holder. Besides, the wrongful act targeted by the public interest litigation tends to be generalized and covert. Therefore, ordinary natural persons or enterprises often lack the ability and motivation to file a suit, and this is exactly why China establishes the public interest litigation system.

8.2 Public Interest Litigation Versus Private Interest Litigation

In China, the ongoing public interest litigation does not affect the infringed to file a private interest litigation according to law. On the contrary, the public interest litigation may also contribute to the private interest litigation in the following aspects.

Firstly, as for the facts found by the effective judgment of a public interest litigation, neither the plaintiff nor the defendant of the private interest litigation needs to present evidence for such facts again. Unless either party presents evidence to the contrary to overturn such findings (only the plaintiff may do so in environmental protection litigation), the facts found by the effective judgment of a public interest litigation shall prevail. In terms of the legal nature of the defendant’s act, the cause and effect between the defendant’s act and the environmental pollution, and the legal liability of the defendant, if the findings of a public interest litigation are favorable to the plaintiff, the plaintiff can claim that such findings be directly applied, while the defendant needs to present evidence to the contrary to overturn such findings. However, if the findings of a public interest litigation are favorable to the defendant, the defendant cannot claim that such findings be directly applied, but shall present further evidence to support his claim. In other words, the plaintiff of the private interest litigation may take a “free ride” on the findings of the public interest litigation, which actually reduces his burden of proof in the private interest litigation.

Secondly, in the private interest litigation filed by consumers, if the corresponding public interest litigation has been lodged, consumers can apply for suspension of the private interest litigation and wait for the judgment of the public interest litigation, so as to make full use of the “free rider” right.

Thirdly, in the environmental protection litigation, if the defendant is held liable in both public and private interest litigation, while his property is insufficient to cover all liabilities, then he should first perform the obligations under the judgment of the private interest litigation. This has reflected the special care for private rights and interests provided by the Chinese law.

8.3 Who May File a Civil Public Interest Litigation

At present, in China, there are mainly two types of subjects that may file a civil public interest litigation: social organizations and procuratorates.

8.3.1 Social Organizations

The term “social organizations” mainly refers to social organizations, foundations and social service agencies, etc. registered with the civil affairs department. For example, All-China Environmental Federation (中华环保联合会), China Biodiversity Conservation and Green Development Foundation (中国生物多样性保护与绿色发展基金会) and Beijing Friends of Nature Public Welfare Foundation (北京自然之友公益基金会) are well-known social organizations in the field of environmental protection; China Consumers Association (中国消费者协会) and various local consumers associations are well-known social organizations in the field of consumers’ rights and interests protection.

Generally speaking, the purpose and business scope of a social organization that files a public interest litigation should be related to the public interest involved in the litigation. Therefore, social organizations generally cannot file a public interest litigation against infringement outside their own fields. The public interest litigation related to consumers’ rights and interests is generally initiated by China Consumers Association and various local consumers associations. Pursuant to the Chinese law, to be qualified to file an environmental public interest litigation, a social organization shall meet the following conditions:

  1. (1)

    Registers with the civil affairs department of the government at or above the districted city level according to law;

  2. (2)

    The purpose and main business scope defined in its articles of association include safeguarding social and public interests;

  3. (3)

    Engages in environmental protection public welfare activities for more than five consecutive years; and

  4. (4)

    Has not been subject to administrative and/or criminal punishment due to violation of laws and/or regulations during the five years prior to the public interest litigation.

There has been no explicit provision in the Chinese law yet with respect to which social organizations should file other types of public interest litigation. However, we believe that such circumstances may be handled with reference to the relevant provisions on the environmental public interest litigation.

8.3.2 Procuratorates

The main duty of China’s procuratorates is to initiate public prosecution against crimes (also including investigation of job-related crimes in the past). Besides, the procuratorate also assumes the duty to supervise civil and administrative cases by lodging a protest. China, after a series of reform and experimental measures, revised the Organic Law of the People’s Procuratorates of the People’s Republic of China in 2018 to include the filing of public interest litigation into the duties of the procuratorates.

According to the Chinese law, there are two ways for a procuratorate to initiate a public interest litigation:

First, the procuratorate shall make an announcement for a period of 30 days in accordance with the law upon discovering an infringement on the public interest. Upon expiration of the announcement period, only if the authority or social organization that has the right to file a public interest litigation fails to do so, may the procuratorate file a public interest litigation instead; if the said authority or social organization files a public interest litigation, then the procuratorate can provide support to the authority or social organization by providing advice and/or assisting in investigation and evidence collection.

Second, the procuratorate may, while filing a criminal public prosecution against a crime that damages the public interest, bring an incidental civil public interest litigation with the court.

Furthermore, the Chinese law classifies acts that infringe upon the name, portrait, reputation and honor of heroes and martyrs as acts that infringe upon the public interest. Given the particularity of this type of cases, we won’t walk you through this issue for the time being.

In the public interest litigation filed by the procuratorate, the procuratorate is not called the “plaintiff”, but rather the “public interest litigation prosecutor”. The procuratorate shall enjoy the litigation rights stipulated in the CPL as well, unless otherwise provided by the law.

8.4 Announcement Is Required for a Public Interest Litigation

With respect to the environmental public interest litigation and the public interest litigation related to consumers’ rights and interests protection, the court shall, after accepting the case, announce the acceptance thereof to the public at large, so as to ensure the public’s right to know. Other social organizations that have the right to file a public interest litigation may also apply to join the litigation as a co-plaintiff within 30 days as of the announcement date.

If the public interest litigation is initiated by the procuratorate, given the procuratorate has made an announcement before prosecution, the court does not need to make an announcement again after accepting the case.

8.5 The Competent Administrative Department Shall Be Informed of the Public Interest Litigation

The court shall, in addition to making an announcement to the public, notify the relevant competent administrative departments in writing within 10 days after accepting the environmental public interest litigation and the public interest litigation related to consumers’ rights and interests protection, with an aim to urge the administrative authorities to take law enforcement actions in a timely manner and curb the infringement as soon as possible while initiating the civil proceedings.

Generally speaking, for an environmental public interest litigation, the court shall inform the local environmental protection bureau; for a public interest litigation related to consumers’ rights and interests, the court shall inform the local market regulation authority.

8.6 The Court May Intervene in the Legal Proceedings with a More Proactive Manner

As it involves public interests, Chinese law requires the court to be more proactive in public interest litigation to maximize the intended effect of such litigation. Compared with the private interest litigation, there are some specific examples of court intervention in the public interest litigation proceedings:

Firstly, in most cases of private interest litigation, Chinese courts will not take the initiative to investigate and collect evidence. However, in cases of public interest litigation, the court may take the initiative to investigate and collect evidence (for investigation and collection of evidence by the court, see Sect. 6.11). Especially in the environmental civil public interest litigation, the judicial interpretation of the SPC specifically emphasizes that the court should investigate and collect the evidence as it deems necessary, and may arrange an appraisal or examination on the specialized issues for which the plaintiff should bear the burden of proof (for appraisal and examination and expert opinions, see Sect. 6.10).

Secondly, in the private interest litigation, the defendant needs not to bear the burden of proof for the facts and evidence unfavorable to and admitted by the plaintiff, and the court can directly find the facts of the case based on the self-admission (for self-admission system, see Sect. 6.4). However, in the public interest litigation, if the facts admitted by the plaintiff (including the procuratorate as the “public interest litigation prosecutor”) damage the public interest, the court shall not endorse such facts.

Thirdly, in the private interest litigation, Chinese courts generally follow the principle of “No Trial Without Complaint” and will not inform the plaintiff of the type of claims he should make. However, in the public interest litigation, if the court considers that the claim made by the plaintiff is insufficient to protect the public interest, it may prompt the plaintiff to change the claim or make more claims.

Fourthly, in the environmental public interest litigation, if the parties reach a settlement, the court shall announce the settlement agreement so reached to the public for a period of not less than 30 days. The court may, upon expiration of the announcement period, render a settlement statement only if it considers that the settlement agreement so reached does not damage the social and public interests. Besides, the settlement statement shall be made public. In contrast, the mediation in the private interest litigation is generally conducted privately and the mediation statement will not be made public as well.

(Reference provisions and information for this Chapter)Footnote 1