The court of environmental protection is neglected
   Public interest litigation predicament urgently need a breakthrough

    
   In mid October this year, the Kunming City Intermediate People's court for the first time in the country issued the "environmental status of judicial protection of the green book".
   The Kunming intermediate people's court court of environmental protection was established in December 11, 2008, set up 5 years only accepted environmental public interest litigation 6,

An average of only 1.2 a year, the environmental public interest litigation cases in all cases accounted for only 5.7%.
   Kunming is not only the first intermediate people's court, established environmental courts a few years the admissibility of the public welfare lawsuit is not much.
   Environmental public interest litigation is empty?
   Environmental public interest litigation in China development also faces the problem of how?
   The legal aspect prominent dilemma, whether in China environmental public interest litigation tomorrow?
     Dialysis was left out of the court of environmental protection, in embarrassment behind, is the public interest litigation predicament urgently need a breakthrough.

    [text] in version
   Since November 20, 2007, China's first specializes in environmental cases courts set up, they are: Guiyang City Intermediate People's Court of environmental protection tribunal, Qingzhen City People's Court of environmental protection, the court of Wuxi City Intermediate People's court court of environmental protection...... Kunming City Intermediate People's court court of environmental protection, Yunnan is the first environmental court, as of 2009, Yuxi, Qujing and other 6 courts have been set up.

   In 5 years, the Kunming intermediate people's Court of environmental protection environmental court in civil and criminal cases is a national first, do a lot of work to develop a number of normative documents, effective, successful trial in a number of cases involving environmental protection.

   However, 5 years only 6 pieces of public interest litigation cases, environmental protection to trial in an awkward, public interest litigation predicament urgently need a breakthrough.

 

   Pollution incidents after,

   The courts established

 

   During the period of ancient Rome appeared the earliest public interest litigation, the litigation law of Rome was divided into public interest litigation, the private litigation. In twentieth Century, with the continuous promotion of industrialization, western society entered into the monopoly capitalism period from free capitalism, public interest litigation has been widely concerned. USA's "Clean Air Act" first established the system of environmental public interest litigation, gives all citizens the right to initiate public interest litigation. After that, many countries have established the system of environmental public interest litigation......

   In China, according to the relevant statistics, as of 2012 June, the national independent system of court of environmental protection, environmental protection, environmental protection collegiate court of 3 modes the court of environmental protection 77. At present, the national environmental court number has reached more than 153.

   "The fact is the pollution incident major several effects appeared all over the country, coupled with the rulers attach great importance to environmental protection, under such a background, we set up the environmental tribunal." For the establishment of the court of environmental protection, the Kunming intermediate people's Court of environmental court president Wang Xianghong introduced, the Kunming intermediate people's Court of the court of environmental protection before being established, has been "preliminary test on this model".

   "At the beginning of the establishment, we focus on the public security organs and the local environmental protection administrative organ to establish a feasible and act with united strength of linkage mechanism, and formulate corresponding measures." Wang Xianghong said, the Kunming intermediate people's Court of Kunming City Procuratorate jointly formulated "on several issues for civil environmental public interest litigation case opinion (Trial)", and with the Municipal Environmental Protection Bureau to jointly promote the Kunming City Hall issued "Kunming city environmental public interest litigation relief fund management provisional measures" and other normative documents, make provision for the first time an important problem construction, the environmental civil public interest litigation, litigation procedure of vested interests etc..

   At the end of 2008, Kunming environmental protection tribunal set up, they further established detailed provisions. For example, the public interest litigation of people that the plaintiff's qualification, the positioning filed environmental public interest litigation for public interest litigation people. Intermediate people's court in recent years has been the conclusion of the 6 environmental civil public interest litigation cases, administrative authority environmental protection location will be prosecuted for public interest litigation, no longer called the plaintiff. In addition, the procuratorial organs to public interest litigation human identity filed environmental public interest litigation, but also can be used as support the prosecutor urge and support public interest litigation prosecution of persons. In view of China's "civil law" Fifteenth article only provides support prosecution principle, so they also provides procedures and contents of procuratorial organs to support the prosecution. The evidence problem, also made the corresponding stipulation. As in the choice of appraisal organization, rules, for the damage evaluation of causality, a statutory assessment, appraisal institutions, assessment, identification by statutory bodies; not fixing mechanism, can be assessed, the judicial authentication institution; the judicial authentication institutions can not conduct assessment, identification, can be established according to law scientific research institutions, specialized technical personnel assessment, identification.

   Due to environmental tort often relates to professional and technical problem, they are also required to the parties and the people's court shall have the right expertise as an expert witness to testify, specialized technical personnel statements can be used as evidence in court; and to support the prosecution of the people's procuratorate can provide evidence to the people's court, the interests of public interest litigation evidence belongs to the people. In particular, they also provided creatively the injunction system. Formulated the "on the application in the environmental civil public interest litigation in environmental protection against several opinions to (Trial)", "about the public security organs to assist the people's Court Enforcement of environmental injunction views (for Trial Implementation)". In addition, solves the problem of the cost of litigation, litigation interest.

   After that, Kunming public security organs have established the "environmental protection branch of the public security bureau", "Environmental Resources Office of inspector general" and "environmental protection tribunal". The definition of this a series of detailed measures and establish corresponding mechanism, the newly established environmental courts, is a very good opportunity, to judge according to also have laid a good foundation.

 

The effective communication of public security,

"The milk River" successful case trial

 

   "Can say, Kunming intermediate court of environmental protection was first established, made many beneficial attempts, in some cases is as a good case for publicity, performance is be obvious to people." As the 20 years of trial experience to the king, she said frankly, environmental criminal cases, public security organs between good and effective communication is very necessary. Dongchuan "the milk River" case is a good example.

   Before setting up in the court of environmental protection, environmental protection in such cases no special courts to accept, but scattered in various business court court. "Such as the civil case in court, in court in criminal cases, administrative cases in administrative tribunals, courts of all kinds of cases now relatively concentrated environmental field trial." Wang Xianghong said, the environmental category of cases concentrated jurisdiction, can make the case of high quality, relatively uniform enforcement standards. If the dispersion in the division of various court, on each business division, environmental protection is only a piece of the business they encounter, and the study of environmental protection this part of the content of each business division may not. The court of environmental protection focused involving environmental cases, relevant laws and regulations of the judges to the environmental protection is more deeply.

   After the establishment of Kunming City Court of environmental protection, environmental concern in criminal cases by Panlong, peace, Xundian, Yiliang, Shilin jurisdiction 5 grassroots courts. And the court trial work and corresponding environmental protection, environmental criminal prosecution of Kunming grassroots jurisdiction is concentrated by the 5 county (city, district) of the basic level people's Procuratorate jurisdiction.

   In addition, based on centralized jurisdiction, they have clear standards, to highlight the fight against pollution, destruction of environmental resource crimes. In 2011 June, the Kunming intermediate people's court and the Kunming Municipal People's Procuratorate, Public Security Bureau jointly developed the "about the pollution of the environment, some problems of illegal fishing of aquatic products and other criminal cases opinion (Trial)", "criminal law" law enforcement scale on the crime of throwing dangerous substance, the pollution of the environment crime, detailed, clearly stated that the pollution damage to the environment the behavior of resources, obstructing environmental law enforcement behavior, environmental supervision and dereliction of duty behavior of specific criteria for criminal prosecution.

   After the establishment of the court of environmental protection, including the first environmental public interest litigation cases in Yunnan Province, and the first national environmental protection by administrative organs prosecution by procuratorial organs, and to support the prosecution of civil environmental public interest litigation, the ruling two defendants to the "Kunming city environmental public interest litigation relief funds" to pay 4172100 yuan. Through the trial, let the polluters pay a heavy price, the increase in the cost of the illegal polluters, a strong deterrent to potential polluters, exploration for the Kunming city environmental protection joint law enforcement mechanism has played an exemplary role. The case was the Supreme Court as the court in 2011 ten big typical case.

   Second cases that accepted the civil environmental public interest litigation cases through mediation, the parties reached by the 6 defendants to Kunming city environmental public interest litigation relief funds to pay 44 yuan loss in the mediation agreement. The entry "relief funds accounts", upon the application of Anning City Forestry Bureau, "relief funds accounts" management to the applicant has earmarked 44 yuan, which have all been used in the "Kunming environmental public interest litigation forest" tree planting, water conservation, ecological restoration. At the same time, the defendant also voluntarily pay the ecological repair costs 8 yuan, directly used for repairing the damage to the environment. CCTV "law and economics" column to "defend Castle" in the title, and effect of the experience of the case was reported.

   At the beginning of 2013, Dongchuan District, Kunming City, Jinsha River of Xiaojiang River Basin belongs to a tributary of the water, because of serious pollution of white, be net friend called "the milk river". The exposure in the media after the incident, a step by step fermentation and upgrade, the public security departments involved in the investigation, 34 the existence of incomplete procedures or pollution control facilities not perfect the 45 processing enterprises through investigation "the milk River" events involved in. Among them, Kunming, Kunming East China Sea mineral company Dongchuan Tongyu concentrator, Kunming Zhao Xin mineral company 5 enterprises such as kangaroo underground pipe, environmental protection facilities not perfect to put into production, emissions of toxic and harmful substances and other illegal acts to xiaojiang.

   In 4 months, this case from the first to second trial is very smooth, and the responsibility of the relevant government officials received the corresponding legal sanctions and accountability. The water pollution incident, the Kunming environmental protection administrative law enforcement and judicial linkage member units are positive action, in-depth on-site view and held a special meeting to study, for example, from the perspective of environmental protection administrative organs, administrative penalty should be how to deal with; from the perspective of the public security organ, suspected of a crime, should be how to register investigation, investigation and evidence collection; from the prosecution point of view, it should be how to review the prosecution, accusation of crime; from the court's point of view, it should be how to judge, on both sides of evidence should be how to evidence, cross examination, how to apply the relevant laws, judicial interpretations. It is through the joint efforts of the two courts, these "milk River" pollution of the environment criminal case smoothly.

 

Public interest litigation embarrassment,

5 years only 6 cases

 

   Reporter noted that, in 5 years, public interest litigation cases that went to trial the court of environmental protection is not just as one wishes. In the court of environmental protection 106 kinds of cases involving environmental protection 5 years accepted in civil cases, 63, of which only 6 public interest litigation cases, this is certainly not an ideal data, it does not reach the original intention of setting up environmental tribunal.

   Wang Xianghong said, in 2013 June introduced the "two high" on the application of environmental pollution crime's judicial interpretation reduces the threshold for conviction, refinement of the specific circumstances of the crime, is helpful to the people's court to increase efforts to crack down on such crimes. The expected future such cases will increase the number of.

   Just as Wang Xianghong predicted, from now and in the future, criminal, civil cases of environmental protection will be more and more. At present, the Kunming intermediate people's Court of environmental protection tribunal judges 3 assistant judge 1. Since September 20th of last year, the trial of various related to environmental protection, received a total of 106 cases.

   Although a good start, but, reporter noticed, for 5 years, public interest litigation cases that went to trial the court of environmental protection is not just as one wishes. As the people's Court of last segment, Wang Xianghong think judges have no choice. In contrast with the neglect of the environmental courts, is around the frequency of environmental pollution and environmental destruction events. In recent years, environmental pollution, according to the common sense, environmental protection cases especially public interest litigation case should also be a corresponding increase, but, why 5 years only 6 pieces of public interest litigation cases?

   "First of all, from a legal perspective, although the relevant legal provisions existed but not specific. The law Wang Xianghong said, referring to the 2012 revised "Civil Procedure Law" article fifty-fifth. Rule fifty-fifth: "on the pollution of the environment infringement of the legitimate rights and interests of consumers, many such harm the social and public interests, the law of the relevant organs and organizations can bring a lawsuit to the people's court." Wang Xianghong thinks, this article defines "the law of administrative organs and organizations" is not clear.

   "In a narrow sense, laws and regulations of the administrative organs, administrative organs is related to the laws and regulations and relates to the field, it meets the conditions; but another kind of understand, as long as the administrative law enforcement organs authorized by laws and regulations to engage in environmental protection work, it should be prescribed in the laws and regulations of organ." Wang Xianghong says, "is related to the case. We, as long as the violation of environmental public interest, the relevant administrative authorities and environmental organizations have the right to bring a lawsuit."

   Reporter notes, in 6 pieces of public interest litigation, public interest litigation for many people the local environmental protection bureau, the Bureau of land and resources, environmental protection and rare public organizations and individuals. In 2011 June, the Kunming intermediate people's court accepted public interest litigation cases by the tranquil City Land Resources Bureau sued the defendant Dai Wang phase, the 6 people such as Ban Zhihua illegal mining, destruction of the environment. Anning City procuratorate to the peaceful city court for prosecution, and the 6 defendants given criminal punishment.

   Later, Anning City Land Resources Bureau to public interest litigation of the identity of the person charged 6 defendants, request the court to order the defendant to compensate 443512 yuan environmental losses and 30000 yuan testing fee. The case by the Kunming intermediate people's court mediation, the parties reached by the 6 defendants to Kunming city environmental public interest litigation relief funds to pay losses more than 44 yuan of the mediation agreement.

   Study on Environmental Resources Institute of China University of Political Science and Law, deputy director of the Hu Jing in an interview with the associated press said: "there are some court that accepts the environmental public interest litigation, now accept cases are more cautious." Hu Jing thinks, "Civil Procedure Law" after the 'fifty-fifth, some courts have concerns about further, awaiting legal refinement, then.

   "Indeed, the provisions of the law should be more detailed, we can make effective operation, it is of course the legislative level." "As part of the trial, no one sues us how to judge? Administrative cases in the public interest litigation is the protagonist, powerful in their handling of the case, is very effective." However, speaking of the present present situation, based on the consideration of many factors, by administrative organs in environmental protection as a public interest litigation prosecution is lack of enthusiasm and related assessment, incentives, from environmental groups filed public interest litigation, litigation has evidence to the weak capacity of approximately, this leads to public interest litigation cases less in to a certain extent.

   Of course, in accordance with the provisions of our procuratorial organs, "to the identity of the public interest litigation filed environmental public interest litigation, can also be used as a support for the prosecution, urge and support public interest litigation prosecution, but the government's role of procuratorial organs sometimes can't replace." Wang Xianghong thinks, Kunming is the case, as long as the environmental protection administrative organs and the public security organs shall strengthen coordination linkage, the full implementation of the Kunming City Intermediate People's court, procuratorate, Public Security Bureau and the Municipal Environmental Protection Bureau jointly developed "on the establishment of Environmental Protection Law Enforcement Coordination Mechanism of the implementation of views", on suspicion of crime of environmental pollution case clues to the public security of the the timely transfer of, then from the administrative law enforcement to the judicial process to increase efforts to crack down on the crime of polluting the environment, "should be normalized and not temporary".

   

Fund of environmental public interest litigation,

To solve the problem of cost benefit

 

   In Kunming, we welcome that, in order to solve the high cost of litigation and litigation of vested interests, Kunming environmental protection tribunal as early as in the early days, to City Hall recommended the establishment of "Kunming City, the environmental public interest litigation fund". In October 25, 2010, to jointly promote the Kunming intermediate people's court and the Municipal Environmental Protection Bureau, Kunming City Hall published the "Interim Measures for the management of relief funds of Kunming city environmental public interest litigation".

   About who has the right to initiate public interest litigation, "Regulations" Revised Draft Environmental Protection Act Three review: "on environmental pollution, ecological damage, damage the public interests, shall be registered according to law in the Civil Affairs Department of the State Council, the national social organizations engaged in public welfare activities of the environmental protection for more than 5 consecutive years and reputable may bring a lawsuit to the people's the court." The two reviewers, subjects have the right to initiate public interest litigation, only the China Environment Federation, a.

   Analysis from the angle of law "," Civil Procedure Law "clearly defined 'who advocates, who bears the burden of proof', to the court, must prove they have been damaged, and proved to be each other's behavior directly led to their damage." Wang Xianghong thinks, this is precisely as a non-governmental environmental protection organization or individual citizens "soft rib".

   Wang Xianghong said, a necessary condition for the admissibility of public interest litigation court, one is in the legal procedure, should have relevant evidence against the facts; two is to belong to the jurisdiction of the court; three is no more than the limitation of action. Especially the evidence problem, Wang Xianghong for example, water pollution, water is flowing, in the fixed evidence is very difficult, the evidence is more difficult.

   Qujing Luliang chromium pollution incident has shocked the whole country. In May 23, 2012, Beijing "Friends of nature" and the Chongqing green volunteers union together to Qujing, to bring environmental public interest litigation in Luliang Chemical Industry Co., Ltd. chromium pollution event. However, in the court to mediation, the 3 defendant company denied that court mediation, the case will return to court trial procedure. This is initiated by the folk organization of environmental public interest litigation once again plunged into whirling.

   Hu Jing said: "the grass-roots non litigation government organization to less, I think it is considering funding problems, a lawsuit down, investigation, forensics, the lawyer will many, active non-governmental organization is not too high." Evidence of the difficulties, also includes access to environmental monitoring data and other professional data. With these data only the relevant government departments, have legal effectiveness. In addition to the evidence to the environmental action, individuals and organizations have to face the high legal fees, appraisal fees including environmental damage. If once lost, they face is to bear these costs. This caused a lot of organizations and individuals do not have the ability to do this kind of appraisal, but also has a direct impact on the burden of proof, is likely to lose.

   In the Kunming environmental protection tribunal as early as in the early days, to City Hall recommended the establishment of "Kunming City, the environmental public interest litigation fund". "Environmental public interest litigation in order to safeguard the social environment public interest litigation, vested interests in the society, the cost of litigation by the society." Wang Xianghong said, the Kunming intermediate people's court established the "foundation" of environmental public interest litigation, environmental litigation in Kunming high cost of litigation and litigation interest ascription problems have been addressed. The first public interest litigation cases, 4172100 defendants compensation all entered "special funds for relief to Kunming city environmental public interest litigation". Then, if filed public interest litigation, litigation costs can relief fund for the public interest litigation.

   Wang Xianghong also introduced, not only bear the compensation to be paid after losing to the "public interest litigation relief fund", repair the environment costs by relief fund expenditure. She said, the environmental protection tribunal since its establishment also attempts to ecological restoration costs from the criminal defendant trees or assume a certain amount of judgment in environmental criminal cases, such as the conclusion of the 3 "the milk River" environmental pollution cases, 3 defendants units and the defendant voluntarily to Kunming city environmental public interest litigation relief fund account pay the ecological repair costs 490000 yuan.

   In 2011, the Kunming intermediate people's court and the Municipal Environmental Protection Bureau, Anning City Court, Anning City Forestry Bureau and other units built covers an area of 200 acres of the first national "Kunming environmental public interest litigation forest" in Anning City car wood River reservoir water source protection areas, used for planting trees, water conservation, restoration of ecological environment. The establishment of "the environmental public interest litigation forest", and by the environmental tort shall bear the costs of environmental remediation, Kunming environmental court such practices in the country is the first.

 

   Reporter Deng Jianhua / text reporter Jiang Yang / photo editor Gao Xiaojin
    Spring city evening news events [depth / edited by Huang Yali temperature star Deng Jianhua]