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Z. Wu
whether the claims of the administrative PIL suit is consistent with the procuratorial
recommendations made in the pre-litigation procedure; if not, an explanation should
be made to the People’s Procuratorate.” When reviewing pre-litigation procedures,
we must be objective and fair. We must consider not only the actual performance
but also the ability of the administrative organ to perform its duties. “We should
consider whether the administrative organ has initiated the filing, investigation and
other procedures of administrative punishment in a timely manner after receiving
the procuratorial recommendations, and whether there are objective obstacles that
prevent it from performing its duties within two months. Under special circumstances
such as the restoration of vegetation and soil and pollution control, when the respondent administrative agency which is willing to make rectification, due to objective
limits such as seasonal climate, construction conditions and period, fails to complete
the rectification within the period recommended by the procuratorate, it should not
be simply deemed as failure to perform duties according to law.”
Third, we should explore the composite litigation model. EPIL involves the entanglement of rights and obligations between multiple parties. A case of environmental
damage caused by pollution may involve the private interests of individual rights
holders, and cause damage to the ecosystem as a public interest. Hence it may involve
infringements, criminal issues, and administrative issues caused by the poor performance of duties by regulatory authorities. In terms of efficiency, it is obviously
time-consuming and labor-intensive to handle a case of environmental pollution
via separate litigation procedures. Therefore, “an important mission facing current
legislation for environmental litigation is to establish the symbiosis between man
and nature and realize integrated ecological protection based on substantial interaction and integration of environmental issues.” Considering the fact that the damage to
public and private interests is based on environmental damage, some scholars suggest
the combined trial of environmental civil public- and private-interest litigation cases
to resolve the current dilemma faced by separate litigation, which is undoubtedly
the most appropriate solution so far, and can accumulate experience for the ultimate
legislation and research for environmental (civil) procedures. In addition to the civil
PIL and administrative PIL initiated by the procuratorate, Article 20 of the “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on
Several Issues Concerning the Application of Law in Public Interest Litigation Cases
Filed by Procuratorates” clearly stipulates the system for procuratorates to file civil
PIL collateral to criminal procedures, which has become an important type of EPIL,
and whose specific rules are being laid down. The composite litigation model can
solve public and private interest issues at the same time and improve the litigation
efficiency and realize full, holistic environmental protection at the same time.
Fourth, we should continue to explore the establishment of a punitive compensation system. Punitive compensation refers to the compensation whose amount
decided by the court exceeds the actual damages. It is based on the damage suffered
by the victim, that is, a special punitive measure based on the loss to be compensated.
It is stipulated in the General Principles of the Civil Law, Tort Liability Law, and
Consumer Rights Protection Law, and in practice, it can effectively deter offense.
In EPIL, there used to be the problem of calculating multiples based on the virtual
Z. Wu
whether the claims of the administrative PIL suit is consistent with the procuratorial
recommendations made in the pre-litigation procedure; if not, an explanation should
be made to the People’s Procuratorate.” When reviewing pre-litigation procedures,
we must be objective and fair. We must consider not only the actual performance
but also the ability of the administrative organ to perform its duties. “We should
consider whether the administrative organ has initiated the filing, investigation and
other procedures of administrative punishment in a timely manner after receiving
the procuratorial recommendations, and whether there are objective obstacles that
prevent it from performing its duties within two months. Under special circumstances
such as the restoration of vegetation and soil and pollution control, when the respondent administrative agency which is willing to make rectification, due to objective
limits such as seasonal climate, construction conditions and period, fails to complete
the rectification within the period recommended by the procuratorate, it should not
be simply deemed as failure to perform duties according to law.”
Third, we should explore the composite litigation model. EPIL involves the entanglement of rights and obligations between multiple parties. A case of environmental
damage caused by pollution may involve the private interests of individual rights
holders, and cause damage to the ecosystem as a public interest. Hence it may involve
infringements, criminal issues, and administrative issues caused by the poor performance of duties by regulatory authorities. In terms of efficiency, it is obviously
time-consuming and labor-intensive to handle a case of environmental pollution
via separate litigation procedures. Therefore, “an important mission facing current
legislation for environmental litigation is to establish the symbiosis between man
and nature and realize integrated ecological protection based on substantial interaction and integration of environmental issues.” Considering the fact that the damage to
public and private interests is based on environmental damage, some scholars suggest
the combined trial of environmental civil public- and private-interest litigation cases
to resolve the current dilemma faced by separate litigation, which is undoubtedly
the most appropriate solution so far, and can accumulate experience for the ultimate
legislation and research for environmental (civil) procedures. In addition to the civil
PIL and administrative PIL initiated by the procuratorate, Article 20 of the “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on
Several Issues Concerning the Application of Law in Public Interest Litigation Cases
Filed by Procuratorates” clearly stipulates the system for procuratorates to file civil
PIL collateral to criminal procedures, which has become an important type of EPIL,
and whose specific rules are being laid down. The composite litigation model can
solve public and private interest issues at the same time and improve the litigation
efficiency and realize full, holistic environmental protection at the same time.
Fourth, we should continue to explore the establishment of a punitive compensation system. Punitive compensation refers to the compensation whose amount
decided by the court exceeds the actual damages. It is based on the damage suffered
by the victim, that is, a special punitive measure based on the loss to be compensated.
It is stipulated in the General Principles of the Civil Law, Tort Liability Law, and
Consumer Rights Protection Law, and in practice, it can effectively deter offense.
In EPIL, there used to be the problem of calculating multiples based on the virtual