Success attempt, within the system and test case -- Huaqingjiayuan residential green breakthrough

June 17, 2005 is a worthy of our memory of the day, this day, lawyer Chen Yueqin and Beijing Gardens Bureau Huaqingjiayuan community greening project completion and acceptance of the administrative litigation case, signed a "reconciliation agreement", the agreement: the plaintiff lawyer Chen Yueqin the withdrawal of administrative complaint, from the Xicheng District court the defendant Beijing City Gardens Bureau in 2005 July 10 recently completed Huaqingjiayuan community greening project completion acceptance, issued and stamped with the official seal of the greening project completion and acceptance of single, the defendant should be in the professional and the principle of seek truth from facts, field mapping and the greening project completion and acceptance of Surveying and mapping, the single scene, invited to witness the plaintiff. In July 7, 2005, Beijing Municipal Gardens Bureau about fulfilling commitments, to check the Huaqingjiayuan residential green, and issued a "green" acceptance certificate. At this point, Chen Yueqin lawyers in April 25, 2005 sued the Beijing Municipal Gardens Bureau according to the requirements of China's "city greening Ordinance" article sixteenth and related compulsory national standards in a month to perform the Huaqingjiayuan greening works acceptance, and issue the greening project completion and acceptance of the statutory duties of administrative litigation, and finally to a settlement on the successful case.

Because of the landscape Bureau issued green rate that shows the actual green Huaqingjiayuan residential rate of only 16.3%, a far cry from the commitment and the developers sales 41% of the book, and the government mandatory standard line 30% also have half of the gap, more shocking is the fact that, in Beijing, more than 3000 of commercial housing in the area, the relevant government regulatory authorities didn't acceptance of a completion of residential green space, which leads to the current commercial housing residential green space is less and less, almost become gally status. In the green home, friends of nature, green island, the Beijing News, Sohu Focus real estate network and Beijing Chen Yueqin law firms and other private institutions and the media initiative, Beijing City Bureau of parks and the city planning commission to take the initiative and cooperative attitude, launched in Beijing 100 small green test activities, the status and compliance verification of Beijing city commercial housing residential green, set off a small recovery of green environmental protection storm. This case has aroused strong reaction from all sectors of society, Beijing City Hall also attached great importance to, Wang Qishan mayor personally instructions, requirements of relevant administrative departments coordination division and cooperation, to put in place of government regulation.

Since then, Huaqingjiayuan residential green administrative litigation of social value and maximize the highlight, the case is considered to be the first case China environmental public interest litigation success, started the environmental public interest litigation China precedent, is comparable to America 1960's Storm King Law Case milepost value.

Specifically, the case of public value is mainly manifested in the following points:

1 the case makes the green Beijing city more than 3000 commercial housing into the government regulatory perspective, the real green 100 quarters will be checked for acceptance, substandard construction, is expected to return green in government regulation urging, the future commercial housing completion acceptance will increase the green project acceptance, that is to say government planning permission for the district 30% green rate of the bottom line is no longer a mere scrap of paper, and can actually appear in the district residents living, let the owners really enjoy green bring their quality of life and the value of environmental protection.

2 the case contributed to the government in place for commercial housing plot green regulatory functions, perform their statutory duties is no longer a dabaihua, and become the government to develop compulsory course habits of administration according to law.

3 the government down the superior to the throne, in cooperation with private handshake, force gauge enterprises, and jointly promote China's environmental protection industry, a typical successful example to create China's environmental public interest litigation.

  

Two, how to "public interest"? -- owners, community and city environment

Below we try from the public interest litigation theory, some research on the case.

It should be said, this case is not as environmental public interest litigation, the mountains and rivers, atmospheric pollution of soil so typical, but relates to the city greening and environmental protection problems, even relates to the green environmental protection city commercial housing residential area. Obviously, the city's green, plays an important role in protecting and improving the city environment. A large area of city of green plants can not only adjust the city temperature, improving the urban climate, clean air and water, save water, reduce noise interference, attract birds, wild animal, and can beautify the city environment, promote physical and mental health of residents. While the small green residential city is the city greening cells, can be described as the "lung of the city". Different places of public green belt, green city residential area and city park, lies in: first, it be together morning and night and residents, residents may rarely daily stroll in the park to enjoy large green scenery and fresh air, but the residents live in the village, but every day, morning exercise after dinner walk to enjoy green; second, residents the real money to buy residential green space ownership. This makes the greenbelt has the value and importance of There is nothing comparable to this.

On the surface, the small green belongs to the residential area of public goods, the owner closed the small green makes the beneficiaries of the basic fixed for residential, in accordance with the economics and consumption to exclusive competitive basic classification of goods, the small green should belong to the private interest of club goods. [2] and for the club goods, even if it is for private certain which is different from the pure public goods, but they still can't avoid the tragedy of the Commons (the tragedy of the Commons). Therefore, for the maintenance of residential green space from the micro sense, is in the area of the interests of all owners.

The private and the public welfare of club goods, which contains the items of the "public interest" judgment is not so directly. But the public interest of the exact meaning, still is the academic debate. Some scholars believe that "the public interest is not a political, legal concept of reality, but can only tell roughly behavior orientation behavior. In simple terms, when altruistic one activity, can saying is to serve the public interest action." [3] and the dialectical relation between public interests and personal interests is the basis which can be transformed into each other. When personal interests or personal right is infringed on the universality and the typical significance of economic order and social justice, personal interests into the social and public interests. The external form of expression of public opinion is often been approved for social welfare, caused widespread concern of the public. Therefore, the club goods rights for is under certain conditions in the public interest.

In American, air, water, forests, grasslands and other natural resources environmental impacts associated with land activities into pollution public survival of public nuisance (public nuisance) prejudice and caused to the individual or the use of all environmental pollution, natural resources of private (private nuisance). Some scholars are against causes environmental legal remedy called environmental public interest relief; private nuisance triggered by environmental relief called environmental private interest relief. But when a behavior will also cause the public nuisance and private nuisance, caused only by what kind of nuisance litigation division of public interest litigation or private interest litigation is unreasonable. In this case, the victim may have brought the private litigation also has filed public interest litigation may, therefore, in order to suit for public interest litigation should be more reasonable definition. [4] in the analysis of this case, we will find the case there are competing private and public, so the significance of the case not only for all owners to Huaqingjiayuan community, but for the residential area of residential district in Beijing city and even the country's real estate green environment the greater environmental public interest.

American environmental law of "civil procedure" (Citizen Suit) belongs to the public interest litigation in nature "(Public Interest Action) of a ring, civil lawsuits can't into two categories: one for pollution sources include private enterprises, America government or other government agencies at all levels, Secretary for Environmental Protection Bureau. The reason is the violation of the duty to prevent and control pollution and statutory or authority; the latter because of the execution of the legal obligations to its neglect. [5] and Huaqingjiayuan residential green case is composed of two kinds of litigation, is one of the owners of the developers of the breach, the other is the regulatory approval of the owners rate of green administrative omission lawsuit. The civil action and the administrative proceedings to mention is the two link for the restoration of greenbelt essential, in the following discussion, we will refer to America environmental law of "civil litigation" system to the above two kinds of lawsuit are analysed, the mechanism, to elucidate the significance of the in.

  

(a) a breach of contract lawsuit -- and developers struggle

Huaqingjiayuan developers in advertising sales, specially marked the plot "afforest rate is as high as 41%", and approval issued by the Beijing Municipal Gardens Bureau proved that, the actual rate of green Huaqingjiayuan is only 16.3%. Community planning should be green, covered with tiles, and a piece of green cover up two Tung banlou. In the dense city space, an important factor in residential areas of the high rate of greening is to attract buyers. The little green or green little cell is not suitable for people to live in. While the city environment, is of all kinds of city area residents to city center of natural and artificially transformed natural factors, it is divided into natural and artificial environment. [6] many of the residential area is the city of artificial environment is extremely important part, and the green area is the improvement of the ecological environment, beautify life, a key in improving the people's physical and mental health. Therefore, "city greening Ordinance" and a series of laws and regulations of the mandatory provisions of the city greening, require new residential green space of residential district with a total ratio of not less than 30%. Developers in violation of the mandatory provisions, illegal occupation planning green area ratio of green space has shrunk serious behavior, essentially is a kind of damage to the environment of the city.

In American environmental lawsuit, the plaintiff's injury or economic loss is not necessary, and put forward the aesthetics of the damage has been enough. [7] USA believes that the Supreme Court, aesthetic and graceful environment like in economic life, our society is an important part of the quality of life. Theoretically speaking, the developers of illegal occupation of green ecological residential environment behavior is a kind of residents of the district environmental tort, but, if the lawsuit prosecution, in the existing legal system under the court is not accepted. Therefore, we choose the default action. According to China's "contract law" article fifteenth paragraph second, and "the Supreme People's Court on the law applicable to a number of commercial housing sale contract dispute cases the interpretation of" third, the owners think, developers in the "Huaqingjiayuan -- a modern living space" the advertising sales, specially marked the residential "green rates as high as 41%", should be regarded as developers Huaqingjiayuan greening rate of concrete and clear promise; and developers to promise Huaqingjiayuan 41% greening rate is an important factor to attract property buyers, housing prices and therefore, it should be regarded as an offer as part of the terms of the contract. Therefore, the violation of the terms of the contract, the developer shall bear the liability for breach of contract. Accordingly, the owners filed a civil lawsuit, the court to order the defendant to fulfill its commitment to restore green space, Huaqingjiayuan residential green rate of 41%; and 5% of the total 1629 paid the penalty. At present, the case is ongoing.

Although we can not have not yet determined the outcome of the case to comment, but we can imagine, if the court in support of the claims of the plaintiff, require developers to the actual performance of the contract -- leases green, make Huaqingjiayuan residential green environment can be improved, not prescribed in part by the developer to give appropriate compensation owners, so the lawsuit purpose -- to make including owners, all residents enjoy a small range of good green environment "public interest" will achieve. Maintenance of residential property owners living "environment right" through the breach, can saying is a kind of litigation skills, specific legal norms after all the existing legal system has not established the citizens "environmental right". To infringe citizen's environmental right lawsuit is still far in the administration of justice is not clear, therefore, choose the default action, at least make residents violations "environmental right" into the judicial procedure, to require developers to assume liability for breach of contract in the form of small green environment to be positive, and this is also the case, as it is, can produce huge social effect and therefore can play the role of maintenance of residential environmental rights and interests.

(two) not as action -- and the government department in charge of dialogue

Bear the approval and oversight responsibilities for greening planning in Beijing city of Beijing City Planning Commission and Beijing Municipal Gardens Bureau of administrative litigation purpose, is in line with the requirements of the competent civil litigation and the two unit on Huaqingjiayuan quarters of the green rate issued by the evidence of measured data. Therefore, the lawyer Chen Yueqin respectively in 2004 April and 2005 April, the Beijing Municipal Planning Commission and the Beijing Municipal Gardens Bureau to court. However, along with the two administrative lawsuit, the absence of owners gradually found more problems hidden in the lawsuit after -- Landscape Planning of residential district supervisory duties. According to the "city greening Ordinance", "Beijing city urban greening Ordinance" and other related regulations, the competent department of city planning administration and city landscaping administrative departments in charge of examination and approval of construction projects and green space planning, planning index and construction plan, in accordance with the law supervision implementation of greening the city of supervision index. While the "administrative licensing law" after the implementation of the greenbelt, the power to approve and supervise all under the Beijing Municipal Planning Commission, although Beijing City Planning Commission is not measured by the city greening indexes and issue the inspection report of professional competence, and Gardens Bureau of Beijing City, with the professional ability and no acceptance of construction project planning the power, however, the conflict is not administrative division, become have oversight responsibilities sector exemptions not perform their statutory functions. If the regulators had to make supervision and inspection responsibilities, so developers wanton occupation planning green space will be stopped, residential green space will not shrink a large area. Thankfully, after June 17, 2005, the owner and the Beijing Municipal Gardens Bureau reached a settlement agreement as mentioned before, the competent department of the government has begun to solve the green building and expansion joint: Beijing City Planning Commission has decided to small acceptance after the data transferred to the Bureau of parks, Gardens Bureau will also be on the green area planning, supervision, the acceptance situation of understanding, to do the follow-up supervision.

The normative documents of our court to delimit the government functions have no power of judicial review, therefore, conflict and not to court verdict form to solve the administrative supervision function, but only on the basis of the existing legal norms to judge whether the administrative organs perform the definition provided, this brought against a citizen of administrative omission lawsuit the referee, require government agencies to perform their statutory duties, safeguard the legitimate rights and interests of citizens. Therefore, environmental administrative public welfare lawsuit of public welfare litigation, the decision has radiation effect more. The practice of environmental protection in American in public, "or the public environmental group found that, the limited energy, time and money in forcing the government to improve or enforcement of environmental laws and regulations than in a more meaningful in the banning of individual pollution source. So, although America in jurisdiction and litigation costs of civil litigation made favourable provisions, but the public still less about citizen suits against polluters, the main object of civil litigation is non Discretionary Administrative Acts of administrative organs." [8]

"Private attorney general" theory is the theoretical basis to establish America civil litigation system. "The Constitution does not prohibit the Congress to authorize any person, whether official or non official mention of this kind of dispute lawsuit, even if only to this procedure is that the public interest can be. Such authorized person can be said to be a private attorney general." "Private attorney general to sue to take effect, must have the power of administrative litigation, against the illegal acts of violation of public interests. This kind of person can also have their own standing on the case of people. Because the plaintiff's lawsuit qualification and independent of the size of the loss, so in private of public interest litigation, often is the personal interests of smaller and larger, public interest." [9] in the America, director of bureau of environmental protection in the civil litigation basically is the administrative organ is not as an administrative litigation. According to the relevant provisions of the law, if the director of the federal environmental protection bureau should take certain measures or perform some obligations not to take effective measures or perform some obligations, citizens can Environmental Protection Bureau as the defendant filed civil litigation. "In addition to the federal environmental protection outside, Ministry of Commerce, the Ministry of the interior, the Ministry of labour, Ministry of transport, the Department of the army, the executive power has environmental law government, are likely to become civil lawsuits." [10]

Huaqingjiayuan green administrative nonfeasance case allows owners to realize the residential green space of real data of the right to know, and by the administration consultation form, for the final adoption of legislation in the form of the city greening the environment supervision, improve the strict execution and green environment which will plan for Beijing city greening provides necessary and key system support. Although the same is the case judgement, in the current legal system, the civil legal act natural, the civil judgment influence only on the subject of litigation between; and because public administration management, make strict administrative organs require to perform statutory duties of administrative litigation judgment can promote the realization of public interests at a broader level, this also is the main object America citizen suit is the reason for the non Discretionary Administrative Acts of the executive authorities. In China, environmental pollution and ecological destruction has reached alarming proportions, with administrative and civil participation, the neglect of social exclusion mechanism forces monorail operation so that China's environmental problems become worse. Absence and inefficient administration system disorders and weak, administrative supervision, and environmental administrative law enforcement in the local protectionism of all these factors, resulting in the increasing administrative power not only failed to effectively assume the responsibility to protect environmental public interest, even it still constitutes a threat to public welfare. Therefore, in the current administrative litigation law system, civil law to have environmental enforcement of administrative organs of the wrongful act of administrative lawsuit filed in the future, will be an important part of the environmental public interest litigation.

  

Three, together to create green homes -- hundreds of residential green space in Beijing City sampling rate measured activities

The environment is a kind of public wealth, the environmental pollution and environmental damage is damage to the interests of every member of the society, therefore, the maintenance of good environment, is the common aspiration of all members of society. And because the interests of the public, and in some cases more often than the government or government departments with environmental protection higher desire and enthusiasm. Environmental protection in the legislation of many countries, environmental protection measures are implemented in the strong request of the public, some major environmental pollution and damage to the environment of policy, was canceled because of the protests and boycott the public, the public has become an important force of environmental protection in the world. Therefore, 100 small sampling will be produced by the network and mail by the owners of registration area quasi activities. Chose the owners of their own registration not authorized by the organizers, is to stimulate the owners to protect their legitimate rights and interests of consciousness, let them in the right front, no longer passively waiting for the government's "good governance" [11], but with the right subject status striving to achieve from the rights and interests of the. Therefore, the birth of the civil rights consciousness awakening, and in the right way, for the realization of the right of expression and meaning of the activities of the.

In this event, walk down Beijing City Gardens Bureau and the Beijing Municipal Planning Commission from the owners to initiate administrative proceedings the dock, hand in hand with the owners and environmental protection organization, to join the ranks of sponsors and organizers activities, and bear the heavy work of professional practical activities, it can not be said to be the great progress of the government public management awareness, management level, it is wise to establish a good image of service type government. The government agencies involved not only from a professional force on the protection of the activities carried out smoothly, more important is the government behavior public can make its regulatory tentacles extend to depths of more than 3000 District in Beijing city. In the legislation of administrative authority regulation lag, management responsibilities unclear situation, mutual responsibility between government agencies and their irresponsible seems to be a normal. However, the Beijing City Bureau of parks and planning given regulators participate in this activity, and administrative consultative approach to mutual ownership division, this is actually for city greening planning approval and supervision of a fact clear, definite regulators and actively carry out supervision behavior, is a necessary condition for effective regulation to unscrupulous developers wantonly occupancy green wrongdoing. Therefore, government departments and the public, non-governmental organizations, media friendly cooperation and Its Enlightenment "regulator" in the effective information, is the deeper meaning of this event.

Renowned political scientist Tocqueville once described: "all Americans, regardless of age, the situation is good or bad, the intention of the similarities and differences, are constantly form associations. They not only have everyone in business and manufacturing company, and has tens of thousands of organizations of every hue, such as religious, moral, grave, boring, general or limited, large or small...... You will find, no matter in what place, some advocates of new business is the government in France, in the UK is noble, but in USA must be an organization." [12] is the organization of this highly developed greatly promoted the development American citizen litigation system. But in our country, development of environmental public interest litigation also need to vigorously develop the environmental citizen groups, especially in environmental civil society the development of non government organizations. But persistent professional, litigation of public interest litigation both the strength of the right and litigation need lawyer this legal occupation people enthusiastic participation. Can stand in a public stance on social raise lawyer called "public law" (public interest lawyer) [13]. Effects of public interest lawyers involved in the public interest litigation in the formulation and operation system, the policy has greatly enhanced, the special status and effect of public interest lawyers professional operation and the law in the social life, is conducive to the realization of public policy affect the future through public interest litigation. It is through the public interest lawyers participation and efforts, public interest litigation not only realize the relief of private right, but also become an opportunity to dialogue with the government and enterprises and place, be called on the people concerned and to safeguard their own interests banner. In this event, green home, friends of nature, green and environmental protection as well as the famous NGO Chen Yueqin law firm full support, to provide professional advice for activity, to assist financially in the human, material resources, efforts to promote the development of environmental public welfare undertakings. Can foreknow, environmental non-governmental organizations (associations) and public interest lawyers will become the backbone of construction and practice of environmental public interest litigation system in our country, to promote the process of the rule of law become Chinese environment, the development of environmental protection China elite.