The implementation of the new civil procedure law (two)

With the application of civil public interest action understanding

Authors: Gao Minzhi     From the "people's court"2012Years12Month7Daily article4Version

The new civil procedure law fifty-fifth stipulation: "the pollution of the environment infringement of the legitimate rights and interests of consumers, many damages social public interests, the law of the relevant organs and organizations can bring a lawsuit to the people's court." This is the law for the protection of a new system of special provisions of social public interest, namely, the system of civil public interest litigation. The new civil procedure law to solve the constraints of the civil public interest litigation "bottleneck" problem -- the plaintiff qualification, a dance for joy. Creation of the civil public interest litigation is to implement the important embodiment of Scientific Outlook on Development in legislation in our country, is an important aspect of the innovation of the social management. The provisions of the new civil procedure law principle, just to provide a legal basis for the creation of the litigation system, and the rules of the implementation of specific needs further exploration in judicial practice. In this paper, the understanding of the civil public interest litigation and legal application and puts forward some suggestions, for your reference.

One, about the scope of application

Scope of application of the new civil procedure law fifty-fifth stipulation of civil public interest litigation is "pollution of the environment, against the legitimate rights and interests of consumers, damage the public interests". This enumeration and generalization rules, mainly has two meanings: one is the pollution of the environment, against the legitimate rights and interests of consumers act only in damage to public interests, to safeguard public interests lawsuit based on. If the pollution of the environment, against the legitimate rights and interests of consumer behavior, direct requests to protect individual interests, do not belong to the scope of this article of public interest litigation, and belongs to the ordinary civil litigation that the private interest litigation. The core of public interest in public, to no specific interests of the majority. Although the representative litigation involving many parties, but the victims can be identified, lawsuit purpose is to safeguard the personal interest, it still belongs to the private litigation. Two is the public interest litigation cases including but not limited to "environmental pollution", "violation of the legitimate rights and interests of consumers" two types of cases, the scope of public interest litigation can also according to the practice of development steadily expanding. In view of the civil public interest litigation is still in the initial implementation stage, the scope should be limited to the current temporary environmental pollution, against the legitimate rights and interests of many consumers in these two kind of situation is appropriate.

Two, on the subject of litigation

The new civil procedure law the fifty-fifth regulation the prosecution of public interest litigation subject is the "law of the relevant agencies and organizations". On the "limit the scope of legal provisions" of the problem, there are two different points of view. The first view is that "the law" limits "authority", "limit the relevant organizations"; second view is that "the law" limited "authority", but does not limit the "relevant organizations". Comprehensive analysis of related legislation and legislative interpretation of the legislative intent of the workers, not emphasize "prescribed by law shall be the organization", but that "as for what the organization for public interest litigation, can make further stipulates in the formulation of relevant laws, also can be used in the judicial practice and gradually explore." We agree with the second view, that "the organization" is not affected by the "law" restrictions, but should be associated with the prosecution.

On the "legal authority", meaning can be filed public interest litigation authority, to have a clear legal basis. The basis not only requires the establishment and function of organs stipulated by law, the right to initiate public interest litigation should be stipulated by law. From the current law, the public interest litigation authority, only "in the second paragraph of the people's Republic of China Marine Environmental Protection Law" the ninetieth regulation "in accordance with this law, exercise the power of supervision and management departments of the marine environment".

A range of "organization", to the people's court in the judicial practice and gradually explore determination. In view of the lack of practical experience, technical force is uneven, relevant social organizations of the lawsuit ability, in order to ensure the maintenance of social harmony and stability and order, to effectively carry out public welfare lawsuit, the people's court at that first principle of accepting the civil public interest litigation related organizations have the following conditions mentioned:1Registered and established according to law and nonprofit environmental protection organization or association of consumers;2In accordance with the Constitution in real long-term specialized in environmental protection or the protection of consumer rights and interests of public welfare undertakings;3There is a full-time environmental protection, consumer rights and interests protection of professional and technical personnel and legal staff10People above;4The lawsuit in accordance with the provisions of the articles of association of the purpose, scope of business, service area. If the "PRC consumer protection law," "the people's Republic of China Environmental Protection Law" after revising, made the relevant provisions, and in accordance with the special provisions of the admissibility.

At the same time, we suggest, for the following two types of public interest litigation, the people's court should not be accepted. One is the civil public interest litigation filed the lawsuit for the industry organization. For a simple to litigation as the industry organization is entrusted as an agent ad litem and participate in litigation, rather than directly for the plaintiff filed a lawsuit. Two is the destruction of marine ecology, marine resources, marine protected areas resulting in major losses, the relevant organizations of public interest litigation claim national loss. Because "in the second paragraph of the people's Republic of China Marine Environmental Protection Law" has been clearly stipulates: "ninetieth of the damage to the marine ecology, marine resources, marine protected areas, causing major losses to the state in accordance with this law, by the exercise of marine environment supervision and control departments on behalf of the state responsibility of claims for damages." The term is weighted terms, is limited in terms of marine ecological resources, to claim the main restricted to conduct marine environment supervision and control departments, exclusion of relevant organizations.

Three, about the jurisdiction of the court

In the present civil public interest litigation preliminary implementation stage, in order to ensure the effect of cases, we tend to think that civil tort litigation principle shall be the place where the intermediate people's court. Marine environmental public interest litigation, or damage occurs by pollution, pollution prevention measures taken in accordance with the "special procedure of maritime court of the people's Republic of China" Special Maritime Procedure Law of maritime courts appellate jurisdiction; the higher people's court designated by the maritime court can be summarized in terrigenous pollution and sea water pollution public interest litigation.

In order to ensure the unity of the scale, it is necessary to implement centralized jurisdiction of civil litigation, namely, in respect of the same damage public interests, the same plaintiff or plaintiff to two or more different with the civil public interest litigation jurisdiction of the court, the people's court shall file to transfer the case to the people's court to file.

Four, about the conditions of admissibility

To determine the admissibility conditions of public interest litigation, to locate the accurate grasp of the civil public interest litigation. The civil public interest litigation is a judicial act, to distinguish the administrative behavior. Belonging to the scope of administrative matters within, the people's court should not be accepted, the parties may apply to the relevant organ for settlement. The administrative organ to bring the civil public good lawsuit, the people's court to review whether it is running out of administrative enforcement measures prescribed by the laws and regulations, if the administrative organ can also through the exercise of administrative powers to sanction violations, safeguarding the public interests, the people's court should not be accepted. Secondly, public interest litigation provisions of the civil procedure law belongs to civil litigation, administrative litigation should be distinguished from. Clients as a result of administrative inaction or the decision on such matters as the lawsuit, administrative litigation, the people's court as a civil litigation cannot accept.

In order to prevent the abuse of litigation, the people's court review of the admissibility of civil public interest litigation, in addition to the prosecution whether people have the new civil procedure law article 119th (two) to (four) provisions of the conditions, should also pay attention to according to the provisions of the new civil procedure law article 121st of the complaint, provide preliminary evidence to sue environmental pollution or infringe upon the legitimate rights and interests of numerous consumer infringement behavior and its harm to the public interests of the society, and explain the rationality of its lawsuit request. Do not have the conditions for prosecution, shall be ruled inadmissible.

Five, about the number of the plaintiff's treatment

If the number of the plaintiff for the same damage public interests lawsuit, in order to save judicial resources, improve judicial efficiency, maintain the unity of judgment standard, we suggest that in general should be taken in the merger trial solution, concrete can be divided into two kinds of circumstances:1The people's court civil public welfare lawsuit legal organs or relevant organizations, the provisions of other laws or relevant organizations and authorities in respect of the same damage public interests, against the same defendant present the same or similar claims, the people's court should not be accepted.2 The law of organs or organizations concerned with the same environmental pollution accident, put forward different requests for the same person responsible for prosecution, prosecution or respectively different responsible person, in accordance with the merger trial conditions, the people's court shall adjudicate.

Six, about the plaintiff's claim

In principle, the civil public interest litigation plaintiff can be based on "the people's Republic of China Tort Liability Act" provisions of article fifteenth, request the person to assume responsibility for the cessation of the infringement, hinder, elimination of danger, restitution, compensation for losses, excluding. At issue is the civil public interest litigation the plaintiff could claim damages. From the "Regulations of the people's Republic of China Marine Environmental Protection Law" in article ninetieth, civil litigation plaintiff is may request compensation for loss. However, the nature of the civil public interest litigation the plaintiff cannot obtain expedience decided by litigation. Proceedings the plaintiff on behalf of the state, the people's court responsible person shall assume the liability of compensation, to pay the plaintiff claiming indemnity after Treasury together. The people's court for execution on the judgment, the people's court shall demand for financial department designated accounts receivable.

Seven, about the lawsuit mediation

In the process of legislation of civil public interest litigation, about Civil Litigation Intermediation, has been more controversial. Some suggestions based on the mediation may harm the public interest, that the civil public interest litigation should not be mediation. We think, the mediation system itself requires both public interest litigation or private interest litigation shall not harm the public interest; public interest mediation can make timely fill, must not harm the social and public interests. Therefore, the premise of principle in does not harm the public interest, public interest litigation can still apply conciliation.

Eight, about the cost of litigation

The idea that the people's court shall allow civil plaintiff in public interest litigation from the fees for accepting the case, the preservation of the application fee, the cost of litigation, to encourage people to safeguard the public interest; there is also the view that the Civil Public Interest Litigation Plaintiff still need to pay the cost of litigation, in order to prevent the abuse of litigation. Payment of litigation costs (including slow relief) is prescribed by the State Council unified, the Executive Council in2006Years12Month19DayPublished "means to pay the cost of litigation". Pay on the civil public interest litigation costs, the need for further research, by the competent administrative department of the state to decide whether to make special provisions. Before the special provisions not issued in the country, the civil public interest litigation costs should be unified to implement the State Council "means to pay the cost of litigation" general provisions.

Nine, about the other procedures applicable law

For other questions of civil public interest litigation, such as the specific procedure, rules of evidence, preservation application and guarantee, execution of the judgment, without the introduction of special provisions, should as far as possible in accordance with the general provisions of the new civil procedure law. The civil public interest litigation related to pollution of the marine environment, also should apply special procedures "related regulations of the people's Republic of China Maritime Procedure Law".