Date of Award
Doctor of Juridical Science (SJD)
In China, anyone, victims and witnesses, can report environmental violations to the government. However, the government often fails to act as required by law. Apart from the superior government and its agencies, there is no other functional supervision of the agencies’ malpractice and inaction, although the Constitution and laws have prescribed many. The petition system in China which dates back to the imperial era, is used by the government as a relief valve for social pressures rather than a dispute resolution method. Petitioning is also part of the system by which local governments and leaders are evaluated. Injured victims can file environmental tort lawsuits in court, but the plaintiffs are only limited to injured persons. Although the major burden of proof has been shifted to the defendants, the plaintiffs are still required to prove the relevance between the pollutants and the injuries. When there are enormous numbers of victims, or in a mass environmental tort case, the victims, in theory, may collectively file a representative suit. Legal professionals played a positive role in assisting such suits in China.
Private parties could also challenge the administrative activities of environmental agencies through administrative reconsideration and administrative litigation procedures. In addition, both the Administrative Reconsideration Law and the Administrative Litigation Law empowered the reconsideration authorities and the courts conducting judicial review of certain abstract administrative activities except for laws, regulations and rules, in addition to concrete administrative activities. Although both the Administrative Reconsideration Law and the Administrative Litigation Law grant standing to interested parties who are not the regulated parties and to the victims of agencies’ inactions or nonactions, especially since there are quite often a large number of interested parties and victims, it is still not clear in practice how interested parties are defined. Environmental agencies’ inactions or nonactions are not appealable or reviewable under the current environmental administrative reconsideration procedure, though they can be the object of lawsuits and are reviewable by courts.
Whenever there are no victims in a case, or the pure sufferer is the environment per se, qualified and registered social organizations may file public interest lawsuits (PILs) into the courts against the violators. Recent laws and judicial interpretations empowered public prosecutors to participate in filing PILs against both violators and agencies. Solely public prosecutors are empowered to bring PILs against agencies. Although policy makers intended to supplement the current public enforcement system by introducing PILs, as quasi-private or public/governmental enforcement, into Chinese law, it has now been shifted from the private enforcement side to the far side of public/governmental enforcement. When private citizens are not allowed to file PILs, when social organizations are only allowed to file PILs against violators, and when only prosecutors are allowed to file PILs against the government and the agencies, the intent of promoting the private enforcement of environmental laws has actually come to an end.
Shi, Xiaolong, "Promoting Private Enforcement of Environmental Law In China" (2020). Maurer Theses and Dissertations. 82.
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