Research on the Environmental Public Interest …
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experts, a professional trial model with clear division of labor is taking form. But
environmental protection involves different local courts which may disagree in trial
thinking and differ in trial techniques, and technical experts may not always be able
to appear in court to participate in litigation. Therefore, constructing a sound EPIL
guidance case system and giving full play to the guiding value of typical cases for
trials is the optimal choice for China to improve the EPIL trial mechanism at this
stage. In the next step, we suggest determining the general principles and technically
feasible practices for handling cases of similar infringements and damage facts based
on analysis of typical cases, so as to provide technical support for other courts and
promote specialized trials.
2. Improving the specific EPIL system
First, we should strictly review and restrict the exercise of the party’s right of disposition to prevent any harm to the public interest. In PIL, the physical disposition
involves public interest and must be restricted. One is to determine the exercise of
the right of disposition based on the degree of public interest realization. If the plaintiff’s claim has indeed been fulfilled through settlement or the restoration is made or
danger eliminated by the defendant’s actions, the plaintiff may be allowed to withdraw the lawsuit. If the plaintiff’s withdrawal of part of the lawsuit does not hinder
public interest maintenance, it should also be permitted. Two is to treat the procuratorate and other organizations equally. The withdrawal by the procuratorate must
also comply with the principle of public interest maintenance. The procuratorate’s
exercise of the right to withdraw a PIL lawsuit will defeat the court’s authority-based
review of public interest maintenance, and does not align with the PIL’s ultimate
purpose.
Second, we should to continue to improve the procedures for the procuratorate
to file PIL. The filing of civil administrative PIL and administrative PIL by the
procuratorate should comply with the Civil Procedure Law and the Administrative
Procedure Law, for although the Constitution grants the procuratorate the power of
legal supervision, their power to file PIL comes from the basic civil and administrative procedural laws. Therefore, the procuratorate should qualify as a plaintiff in the
proceedings. There has been a lot of debate about the procuratorate’s role in PIL.
Though it has been getting clearer since the issuance of the Interpretation of the
Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues
Concerning the Application of Laws in Public Interest Litigation Cases, there is still
room for discussion. For example, if the procuratorate is identified as the plaintiff,
should it be referred to as “plaintiff” or “public interest litigant” in the court and
in the judgment? What if procuratorates at different levels disagree on whether to
appeal or withdraw the case, and on facts and legal issues? Should the opinion of the
superior procuratorate prevail, or that of the lower-level procuratorate that filed the
lawsuit? And should the court suspend the procedure to wait for the two to resolve
the dispute? We need specific answers to these questions. In the administrative PIL
filed by the procuratorate, “we must pay attention to the active role of pre-litigation
procedures in urging administrative organs to perform their duties, and examine
653
experts, a professional trial model with clear division of labor is taking form. But
environmental protection involves different local courts which may disagree in trial
thinking and differ in trial techniques, and technical experts may not always be able
to appear in court to participate in litigation. Therefore, constructing a sound EPIL
guidance case system and giving full play to the guiding value of typical cases for
trials is the optimal choice for China to improve the EPIL trial mechanism at this
stage. In the next step, we suggest determining the general principles and technically
feasible practices for handling cases of similar infringements and damage facts based
on analysis of typical cases, so as to provide technical support for other courts and
promote specialized trials.
2. Improving the specific EPIL system
First, we should strictly review and restrict the exercise of the party’s right of disposition to prevent any harm to the public interest. In PIL, the physical disposition
involves public interest and must be restricted. One is to determine the exercise of
the right of disposition based on the degree of public interest realization. If the plaintiff’s claim has indeed been fulfilled through settlement or the restoration is made or
danger eliminated by the defendant’s actions, the plaintiff may be allowed to withdraw the lawsuit. If the plaintiff’s withdrawal of part of the lawsuit does not hinder
public interest maintenance, it should also be permitted. Two is to treat the procuratorate and other organizations equally. The withdrawal by the procuratorate must
also comply with the principle of public interest maintenance. The procuratorate’s
exercise of the right to withdraw a PIL lawsuit will defeat the court’s authority-based
review of public interest maintenance, and does not align with the PIL’s ultimate
purpose.
Second, we should to continue to improve the procedures for the procuratorate
to file PIL. The filing of civil administrative PIL and administrative PIL by the
procuratorate should comply with the Civil Procedure Law and the Administrative
Procedure Law, for although the Constitution grants the procuratorate the power of
legal supervision, their power to file PIL comes from the basic civil and administrative procedural laws. Therefore, the procuratorate should qualify as a plaintiff in the
proceedings. There has been a lot of debate about the procuratorate’s role in PIL.
Though it has been getting clearer since the issuance of the Interpretation of the
Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues
Concerning the Application of Laws in Public Interest Litigation Cases, there is still
room for discussion. For example, if the procuratorate is identified as the plaintiff,
should it be referred to as “plaintiff” or “public interest litigant” in the court and
in the judgment? What if procuratorates at different levels disagree on whether to
appeal or withdraw the case, and on facts and legal issues? Should the opinion of the
superior procuratorate prevail, or that of the lower-level procuratorate that filed the
lawsuit? And should the court suspend the procedure to wait for the two to resolve
the dispute? We need specific answers to these questions. In the administrative PIL
filed by the procuratorate, “we must pay attention to the active role of pre-litigation
procedures in urging administrative organs to perform their duties, and examine