What are the problems of ＂public interest litigation initiated by procuratorial organs＂ after more than two years？

　　"We found the dumping dock, next to the car to be unloaded. The garbage is dumped on the transfer ship and then transferred to the dumping ship. We photographed a whole set of processes through drones. "

　　"Public interest litigation is a special force. For a long time, some administrative organs have some problems that are difficult to deal with or not to deal with in the process of law enforcement, and many of these problems have interest groups behind them. This ‘ Cheese ’ Not moving, but the public interest litigation of the procuratorate moved this cheese! " When referring to the public interest litigation of the procuratorate, Liu Benrong, director of the Eighth Procuratorate of Hainan Provincial Procuratorate, said this.

　　Since the pilot in July 2015, the public interest litigation of procuratorial organs has attracted much attention from the outside world. Two years after the pilot, in June 2017, "the procuratorial organ filed a public interest lawsuit" officially entered the law, and it has been two and a half years since then.

　　What is the effect of public interest litigation by procuratorial organs? What problems have been solved? What are the remaining problems? With these questions, Beijing Youth Daily reporter recently went to Hainan for an interview.

　　Write into law

　　Solve the problem of "who will manage the public interest"

　　The Beijing Youth Daily reporter noted that the pilot of public interest litigation initiated by the procuratorate began in July 2015. At that time, the National People’s Congress Standing Committee (NPCSC) authorized the Supreme People’s Procuratorate to carry out pilot public interest litigation in 13 provinces (cities, districts) including Beijing, Anhui, Shandong and Guangdong.

　　As a legal supervision organ, the important duty of the procuratorial organ is to ensure the unified and correct implementation of the law.

　　On June 27th, 2017, the 28th meeting of the 12th the National People’s Congress Standing Committee (NPCSC) passed the decision on amending the Civil Procedure Law and the Administrative Procedure Law, and "Public Interest Litigation by Procuratorial Organs" was formally written into the Procedural Law and the Civil Procedure Law. In the eyes of many people, this decision has solved the problem of "who will manage the public interest".

　　There are new provisions in the procedural law: when the procuratorate finds that the administrative organs with supervision and management responsibilities in the fields of ecological environment and resource protection, food and drug safety, state-owned property protection, and transfer of state-owned land use rights illegally exercise their functions and powers or do nothing, resulting in the infringement of national interests or social public interests, it shall put forward procuratorial suggestions to the administrative organs and urge them to perform their duties according to law.

　　If the administrative organ fails to perform its duties according to law, the people’s procuratorate shall bring a lawsuit to the people’s court according to law.

　　The new provisions of the Civil Procedure Law: In performing its duties, the procuratorate may bring a lawsuit to the court if it finds that it damages the ecological environment and resource protection, infringes on the legitimate rights and interests of many consumers in the field of food and drug safety and other acts that harm the public interest, without the organs and organizations specified in the preceding paragraph or without the organs and organizations specified in the preceding paragraph bringing a lawsuit.

　　Real case

　　The public reported that the sewage prosecutor filed a lawsuit.

　　"About 1 to 2 kilometers west of the seaside of Meilisha Music Square in Meilan District, someone dumped mud into the sea and polluted the seawater. Please ask the Municipal Oceanic Administration to verify and deal with it. Thank you!" Since October 2018, several citizens have reported the above problems through the 12345 hotline of Haikou Municipal Government, with 11 reports. However, the reply of Haikou Oceanic Bureau was, "After arriving at the scene, law enforcement officers found that there were flat boats loading and unloading construction waste in the west side of the beautiful sand villa area, and no ships dumped mud into the sea." But the report is still constant.

　　As a result, the police officers of the Yongxing Marine Procuratorate of the People’s Procuratorate of xiuying district City, Haikou City brought drones to the reported incident area. "We can’t enter the incident site, and it is beneficial to find and fix clues through drone investigation."

　　The reporter of Beiqing Daily learned that at present, the province has purchased 51 drones, and relied on the township procuratorate to carry out 856 investigations and evidence collection by drones, and found 894 public interest litigation clues in the ecological environment field. Sure enough, the pictures of groups dumping garbage into the sea were clearly recorded by drones.

　　A police officer introduced that in July 2018, a dredging engineering company in Hainan deceived the marine examination and approval authority of the temporary dock by fabricating the fact that the construction waste on the site was shipped to the abandoned land of a village in Zhanjiang without obtaining a dumping permit. A temporary berthing dock was built in the sea near Meilisha, Haikou City, and the construction sludge (muck) was loaded and unloaded by ships and dumped into the sea.

　　In October 2019, Haikou City Procuratorate filed a civil public interest lawsuit with Haikou Maritime Court. This is a typical case after "public interest litigation initiated by procuratorial organs" was written into law.

　　Maintain public welfare

　　Reinforce the lack of law enforcement means of administrative organs

　　After the "public interest litigation initiated by procuratorial organs" entered the law, the procuratorial organs in various provinces acted quickly. Taking Hainan as an example, on July 17, 2017, the second branch of Hainan Provincial People’s Procuratorate filed the "Yang Xiangqing illegal mining case" as the first public interest litigation case in the province.

　　Yang Xiangqing is the legal representative of a company in Hainan. From 2014 to 2016, he repeatedly hired people to illegally mine basalt ore in the company’s contracted land and sell it to the outside world. Although the Law Enforcement Bureau imposed two administrative penalties on him for illegal mining, Yang Xiangqing refused to stop illegal mining.

　　In December 2018, the Second Intermediate People’s Court of Hainan Province ruled that the company and Yang Xiangqing jointly bear the cost of geological environment restoration of more than one million.

　　"Civil public interest litigation reinforces the lack of law enforcement means of administrative organs," said Wang Bangyuan, deputy director of the Fifth Procuratorate of the Second Branch of Hainan Provincial Procuratorate.

　　"For the problem of mine geological environment restoration, the procuratorial organ may file an administrative public interest lawsuit and ask the competent administrative organ to take measures to order the public interest infringer to repair the environment, but the effect can only reach the administrative counterpart, namely the company. However, the company’s property is obviously not enough to bear tort liability, and administrative means cannot achieve the purpose of safeguarding public interests. "

　　Wang Bangyuan said that in order to effectively protect the environment and maintain public welfare, the case chose to file a civil public interest lawsuit, requiring shareholders to bear joint and several liability for the company’s debts, thus avoiding the problem that the company’s property could not bear tort liability.

　　Special power

　　Directly point to the interest groups behind the problem.

　　It’s not just Yang Xiangqing who needs to bear joint and several liability for illegal mining. Liu Benrong told the reporter of Beiqing Daily that procuratorial civil public interest litigation also has a unique role in protecting the ocean.

　　"At present, there are obvious problems in marine law enforcement departments to crack down on illegal exploitation of sea sand, such as insufficient means, single subject being investigated and no liability for damages, resulting in low illegal cost of illegal subjects, which has led to continuous and intensified damage to the marine ecological environment caused by illegal exploitation of sea sand."

　　In order to cut off the "black hand" of illegal exploitation of sea sand, the Hainan Provincial Procuratorate has assigned a number of civil public interest litigation cases of illegal exploitation of sea sand, and explored the inclusion of "ship owners" as co-defendants, and tried to include the ship owners, lessors and criminals involved in the case as co-defendants in public interest litigation, so as to intensify the crackdown on illegal exploitation of sea sand.

　　He said that in the past, it was difficult for the marine police department to prove that the "ship owner" who rented a boat to others was also the subject of illegal sand mining, that is, it was difficult to identify the "ship owner" as a joint infringement. After discovering illegal sand mining, the relevant departments generally impose administrative penalties and require sand to be dumped into the sea. "Our procuratorate is serious and true."

　　Such "trueness" has also been put into practice. When prosecuting an "illegal sand mining case", the second branch of Hainan Provincial People’s Procuratorate listed the sand miner and a shipping company in Fujian as defendants.

　　The indictment is clear: "As the owner of the ship, the company knows that the installation of sand mining equipment on the ship needs permission and inspection, and it has installed self-priming sand mining equipment to participate in illegal sand mining without approval." "The entrusted manager of the ship knows that the sand digger has no legal approval procedures for sand mining and sea use, and still rents the ship to him". The indictment mentioned that the company should be jointly and severally liable for damages caused by illegal sand mining.

　　Liu Benrong believes that public interest litigation is a special force, which has solved many problems that administrative organs can’t take care of or even let go. "Behind many problems, there are actually a large number of interest groups. This cheese is not easy to move, and the public interest litigation of the procuratorate has moved this cheese. "

　　It is reported that in order to protect marine resources, protect the blue land, and carry out special supervision of procuratorial public interest litigation for "protecting the ocean", Hainan has filed 129 public interest litigation cases in the field of marine environmental protection, issued 93 pre-litigation procuratorial suggestions, and filed 13 civil public interest litigation cases to promote rectification of a number of outstanding problems in illegal sand mining, direct discharge of sewage from offshore aquaculture into the sea, and encroachment of coastal defense forests by mariculture.

　　Caught in Trap

　　From "Expert Appraisal" to "Expert Opinion"

　　The offender is "dizzy" and does not cooperate.

　　There are also some difficulties in "public interest litigation by procuratorial organs".

　　In January, 2020, the reporter of Beiqing Daily went to Meilisha Music Square again. Behind the advertising signs such as "Chenghai Dajing, Pro-sea Tibetan Garden", a lot of construction waste was still piled up. How much construction waste has been dumped into the ocean? This problem has puzzled the procuratorial organs for a long time.

　　"The investigation process is very difficult, such as how much is dumped into the sea? We only photographed one ship, and we don’t know how much construction waste a ship can carry, and we don’t know how much the total amount of dumping is. "

　　Fan Guangyu, head of the Sixth Procuratorial Department of Haikou Procuratorate, said that the Haikou Oceanic Bureau had failed to make progress after a week of investigation.

　　After obtaining video evidence, Haikou City Procuratorate also asked the violator, but the other party refused to answer. When the procuratorate brought the video to the violator, the other party even replied, "I am dazzled, I can’t see clearly." Finally, Haikou City Procuratorate comprehensively used expert appraisal and on-the-spot investigation to grasp the relevant data, and made clear the damage to marine ecology caused by the dumping of construction waste into the sea.

　　The indictment of the case clearly stated that "as of December 14, 2018, the company used ships to transport construction waste for about two months, and there is evidence to prove that at least 69,360 square meters of construction waste were shipped".

　　Use evidence such as expert opinions according to law.

　　The reporter of Beiqing Daily was informed that the types of cases of public interest litigation by procuratorial organs in Hainan Province are mainly concentrated in the field of environment and ecology, and the cases in the fields of food and medicine and land transfer are obviously less. It is difficult to evaluate the ecological environment damage, the method of calculating the loss is uncertain, there is a lack of comprehensive ecological environment appraisal institutions in the province, and the appraisal cost is high, so there is no experience to learn from.

　　"In particular, many public welfare violations and damages are difficult to quantify through identification, and at present, no other suitable ones can be found ‘ Quantization ’ Ways, expert opinions still need to communicate with the court. "

　　However, it is difficult to identify the public interest damage, which is a common problem faced by all provinces after the "public interest litigation initiated by procuratorial organs" entered the law. The top management also tried to solve the problem.

　　In January 2019, the Supreme People’s Procuratorate, together with the Ministry of Ecology and Environment and other nine ministries and commissions, jointly issued the Opinions on Strengthening Cooperation and Cooperation in Procuratorial Public Interest Litigation to Fight the Tough Battle of Pollution Prevention and Control according to Law.

　　In view of the problem of "judicial expertise", the opinions are clear, and the connection mechanism between the management and use of judicial expertise in procuratorial public interest litigation is explored. Explore and improve the appraisal fee management and funding guarantee mechanism. Reasonable use of evidence such as expert opinions according to law.

　　In response to expert opinions, the opinions are clear. "If the specialized issues involved in the case are difficult to identify in the process of handling cases, they can be identified by combining other evidence of the case and referring to the opinions of administrative law enforcement organs and expert opinions."

　　Local exploration is also worthy of attention.

　　On May 13, 2019, the Zhejiang Provincial Procuratorate and the Provincial Department of Ecology and Environment jointly established the first joint laboratory for judicial appraisal of public interest litigation (environmental damage), which will be entrusted by procuratorates at all levels in the province to carry out technical services such as investigation and evidence collection, detection and appraisal of environmental damage cases of public interest litigation.

　　Jiangsu is close behind. On July 5, 2019, the joint laboratory for judicial appraisal of public interest litigation (environmental damage) jointly established by Jiangsu Provincial Procuratorate and Jiangsu Provincial Department of Ecology and Environment was unveiled in Nanjing.

　　The joint laboratory will rely on the Judicial Appraisal Center of the Provincial Procuratorate to conduct preliminary public interest litigation sampling, and then the provincial environmental monitoring center will conduct testing, and finally the provincial environmental science research institute will conduct appraisal and evaluation, and issue an appraisal report.

　　pay close attention

　　Public interest litigation is not about winning or losing with administrative organs.

　　"At first, it was very difficult to prosecute. Some administrative organs did not understand this. Some people felt that they had lost face and affected the local image." At the beginning of the public interest litigation filed by the procuratorate, some relevant personnel of the procuratorate told the reporter of Beiqing Daily. Such problems also exist in Hainan.

　　According to reports, some administrative organs in Hainan have insufficient support for public interest litigation. In the process of handling public interest litigation, there are local interference and institutional obstacles, and there is great resistance in handling some cases, which is difficult to break through. Some administrative personnel are worried that the accountability will affect their performance and they will not cooperate with the public interest litigation.

　　But the above problems are being solved. Liu Xingtai, member of the Standing Committee of the Hainan Provincial Party Committee and secretary of the Political and Legal Committee, told the reporter, "The main leaders of 18 local party committees and governments in the province have successively given instructions on the procuratorial work of public interest litigation, and the PLA and Armed Police Corps, Tianjin, Hebei and Guizhou delegations, and the provincial ‘ Two sessions ’ Representatives and members all spoke highly of it. "

　　The attitude of relevant departments at the grassroots level is also changing.

　　In September 2018, the procuratorate of Ledong County, Hainan Province found that coal and firewood were used to bake waste seafood and process fish meal for a long time next to the southwest power plant in Yinggehai Town, Ledong County. During production, a large amount of black smoke was emitted and a strong foul smell was emitted. The generated sewage was directly discharged into a nearby puddle without treatment, forming a large sewage pit. In November 2018, the Ledong County Procuratorate issued a procuratorial proposal to the Ledong County Ecological Environment Bureau, ordering the fishmeal processing factory to stop illegal activities.

　　"After the procuratorate found the problem, it was conveyed to us in time. We will immediately rectify and urge. " Chen Zhiqing, a member of the Pollution Control Section of the Ecological Environment Bureau of Ledong County, believes that the procuratorate and relevant functional departments "are not antagonistic".

　　"Public interest litigation can mobilize the whole society to participate in environmental protection. The procuratorate has given us many suggestions. This win-win, win-win and win-win model can force enterprises to rectify and force government departments to perform their duties. It is also supervision and promotion for us. "

　　In an interview with the reporter of Beiqing Daily in March last year, Zhang Xueqiao, the Deputy Procurator-General of the Supreme People’s Procuratorate, also talked about this issue. He said, "When we handle public interest litigation cases, we are not fighting with the administrative organs for you to lose and win, but to help and promote the government’s administration according to law, jointly safeguard the fundamental interests of the people and achieve a win-win, win-win and win-win situation. Strengthening supervision, communication and coordination through pre-litigation procedures and promoting administrative organs to perform their duties according to law are not only conducive to timely protection of public welfare, but also can obtain the best case handling effect with minimal judicial resources. "

　　In October 2019, Zhang Xueqiao mentioned at a press conference that it is the best judicial state to realize the purpose of safeguarding public welfare before litigation, and urge the administrative organs to take the initiative to perform their duties and rectify through public announcements, round tables and hearings, so as to achieve win-win and win-win results.

　　"Since the beginning of this year, the response rate of administrative organs to procuratorial suggestions has reached 97.1%, and the vast majority of public welfare damage problems have been solved before litigation. If the pre-litigation procedure has not been rectified, a lawsuit will be filed according to law to achieve the effect of prosecution and warning, and effectively promote administration according to law. "

　　Zhang Xueqiao said that the judicial protection of public welfare will continue to be strengthened; Focus on the people’s judicial needs, handle more public interest infringement cases with strong social reaction, handle more influential "hard bone" cases, and strive to provide more accurate and better procuratorial public interest litigation products. (Reporter Meng Yaxu)