Debate on class-action plan

Updated: 2011-12-01 07:42

By Zhao Yinan (China Daily)

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Debate on class-action plan

On Oct 16, workers at a remediation plant in Baiyin city, Gansu province, place soil polluted by heavy metals into a chemical washing pool to purify it. The industrial pollution has driven farmers to desert their land. Nie Jianjiang / Xinhua

BEIJING - Heated debate has arisen over a 50-word article in a draft proposal meant to help the public better protect its interests, particularly in cases involving environmental pollution and food safety.

Judges, prosecutors and social organizations have all asked whether the section is short on necessary details or is inconsistent with current legal practices.

The article, part of a proposed draft amendment to the Civil Procedure Law, entitles "relevant authorities and social organizations" to file class-action lawsuits to defend public interests, especially from cases of environmental pollution or unsafe food.

Luo Dongchuan, deputy director of the Supreme People's Court's research department, said fewer than 20 suits concerning public interests have been filed and heard in the country in the past decade. In those cases, the judicial precedents have concentrated on one point - environmental protection.

"A lack of explicit legal regulations is a big obstacle for class-action suits in China," Luo said.

In current practice, local courts make their own decisions about what kind of public-interest suits can be filed, as well as how large the fines imposed in such cases can be.

If the lack of standards continues to be neglected, it will become a "large defect" in the country's legal system, Luo said. He added the draft should take into account local practices that have produced the best results and put those into the law.

The draft amendment, which has been deemed by many as being one of the top legislature's landmark projects, has met with complaints from the public. Many people blame it for falling short of the goals ostensibly behind it.

In the fewer than 20 public-interest suits that have been filed, most of the plaintiffs have been government administrations and prosecutors. Individuals and non-governmental organizations have rarely been able to file litigation aimed at protecting the public's interests, despite their many attempts.

"The only accuser that was not completely official was the semi-official All-China Environment Federation, an organization affiliated with the Ministry of Environmental Protection," Luo said.

An environmental court in Qujing, a city in Yunnan province, was established in 2008 and, in late October, accepted a case from Friends of Nature, the oldest environmental NGO in China.

The case marked the first time in the country's history that a NGO had been a plaintiff in a class-action lawsuit. Also among the case's plaintiffs was the local environmental protection bureau.

"We didn't try to file with the local environmental protection authority until the court suggested that we do so," said Yang Yang, a program officer with Friends of Nature. "They said the case will be easier to accept in that way."

Yang said the suit's chances in court were likely to improve if a government agency had helped to file it. Such agencies, he explained, can cite "government-controlled documents as proof".

Even so, "it is still impossible for us to independently file a lawsuit, even after the proposal was passed", she said.

"The draft entitles only 'social groups', not all NGOs in China, to file a class-action suit."

In China, a "social group" refers to a particular type of organization, one that has completely different registration and management procedures than social organizations, private non-enterprise entities and other civil societies, according to the country's Regulation on the Registration and Management of Social Groups.

Because Friends of Nature is a private non-enterprise entity, the draft proposal will not allow it to file a class-action lawsuit.

"To be registered as a social group, you have to go through a set of strict procedures, making it almost impossible for us to succeed."

Jia Xiaogang, vice-president of the Supreme People's Procuratorate's civil and administrative tribunal, said a discrepancy exists between the public's expectations for the legislation and the draft proposal itself.

"There are issues that remain unclear and unspecified in the draft, and they will lead to unexpected difficulties if they are put into practice," he said.

Jia said social organizations should have more influence and argued that the phrase "related authorities" is too ambiguous to make the draft proposal's meaning clear.

He said government agencies should not be allowed to file public-interest suits against subordinate bodies, which they already supervise. They should not get an additional means of wielding power over them, he said.

"It will be more practical to define 'related authorities' as prosecutors, for we hold a relatively impartial stance compared with the government," he said.

Xiao Jianguo, a law professor at Renmin University of China, said the top legislature arrived at the current draft through much heated discussion.

"It is ambiguous because it was made in response to the demands of different interest groups," he said. "The strict control over what agencies can file suits stems from a concern that the right to take legal action may be abused."

Lawmakers read the draft amendment at their bimonthly session in October and are now soliciting opinions about it on the National People's Congress' website.