Focus | Ecological and environmental civil public interest litigation pre -compensation system exploration system

Ecological and environmental civil public interest litigation pre -compensation system exploration system

Wang Xiaoguang

Party Secretary and Attorney General of the People's Procuratorate of the People's Procuratorate of the Xihu District, Hangzhou City, Zhejiang Province

Second -level senior prosecutor

Li Yang

Deputy Director of the Fifth Procuratorate of the People's Procuratorate of Xihu District, Hangzhou City, Zhejiang Province

Abstract: The pre -compensation system for civil and environmental civil public interest litigation is a useful attempt and bold exploration of procuratorial public interest litigation work. The operation of the system mainly involves pre -litigation assessment, pre -litigation (compensation) announcement, formulation of mediation plans, and demands to achieve four major links. The system integrates the experience concept of Maple Bridge, complies with the requirements of diversified judicial disputes, and helps to handle various types of public welfare damage to minor civil public interest lawsuits. It can shorten the case handling cycle, save judicial resources, and take into account the effect of case handling. In order to further improve and improve the system, the public participation should also be further improved, the limit and scope of mediation should be clarified, and the implementation of the guarantee agreement through judicial confirmation.

Keywords: pre -litigation compensation pre -assessment pre -complaint announcement and mediation plan

full text

The pre -compensation system of the pre -claim system of ecological and environmental civil public interest litigation is also known as the pre -mediation of the ecological environment civil public interest litigation. The system design proposed in the context is mainly suitable for the lightness of the public welfare violations, the amount of the subject involved is small, and the public welfare infringement of the ecological and environmental civil public interest lawsuit with a better attitude (repentance). The operation of this system can be mainly described as: pre -complaints, pre -litigation (compensation) announcement, formulation of mediation plans, and demands to implement.

At the annual meeting of the Zhejiang Law Society Law Law Research Association held in Chun'an County, Hangzhou City, Zhejiang Province, some scholars believed that the procuratorial organs in public interest litigation were only representatives of public interests, without physical interests, so they lacked the basis of mediation. There are also opinions in the academic community that in order to reflect the efficiency and order value, and in line with the requirements of diversified era of legal disputes, public interest litigation can apply pre -litigation mediation. my country's mainstream views use the latter. Through the comparison analysis of Table 1, it is found that when using the previous compliment (mediation) system to handle mild civil public interest lawsuits in the field of environmental resources, it is more convenient, flexible and efficient, and can save judicial resources. There are still some problems in legal and practical problems that need to be continuously improved.

1. Analysis of the feasibility analysis of the compensation system before the complaint system of ecological and environmental civil public interest litigation

(1) Demand handle in the number of minor ecological and environmental civil public interest lawsuits

With the development of procuratorial public interest litigation in recent years, the amount of cases of civil public interest litigation has also surged. From January to July 2022, the average monthly civil interest cases announced on the Internet of Procuratorate more than 1,000 pieces per month, which means that one year will be one year. More than 10,000 civil interest lawsuits were filed. However, after careful analysis, it was found that a large part of the cases were ecological environment civil public interest lawsuits, and the consequences of damage were relatively mild. The law stipulates that civil public interest litigation cases require the court to form a seven -person collegial panel for trial. The requirements for the procuratorate and the court are relatively high. A trial of civil public interest litigation cases. Many of the civil public interest lawsuits are relatively mild. If such a large number of cases enter the trial procedure, each time a seven -person collegiate panel will be set up for trial, it will inevitably further increase the contradiction between the number of people in the court. The handling of high -quality civil public interest litigation cases must not only ensure the unified political effect, social effects, and legal effects, but also take into account the improvement of judicial efficiency. Therefore, a large number of ecological environment in judicial practice has damaged the minor civil public interest lawsuit cases that are urgently needed to innovate the way of handling cases.

(2) Legislative support of relevant legal provisions such as the Civil Code

Article 1232, 1234 and 1235 of the newly promulgated Civil Code stipulates the "restoration liability" and "liability for compensation" in ecological resource civil public interest litigation cases, and clearly explicitly reimburse the responsibilities and compensation of the specific public interest litigation in the judicial interpretation of the judicial interpretation Rising responsibility to the codes is of great significance. The pre -compensation system for the pre -claim system of ecological and environmental civil public interest litigation uses small judicial costs. Under the premise that does not trigger social contradictions, the same legal effect is achieved, which conforms to the original intention of legislation. The beneficial attempts and bold explorations of the article also improve and develop the public interest litigation work in the new period of procuratorial organs in the new period. The relevant terms of the Civil Code clearly define the infringement liability of the ecological cases of civil public interest litigation, mainly based on repair and compensation. The ultimate purpose is to strengthen the protection of the public welfare ecology. In addition, the "Decision on Strengthening Procuratorate Public interest Litigation Work" issued by the Zhejiang Provincial People's Congress pointed out that cases with small targets in the fields of ecological environment and resource protection, food and drug safety, and the willingness to compensate for compensation are ensured that the procedures are fair and Under the premise that the damaged social public interests can be repaired, the procuratorial organs can reach a compensation agreement with civil liability such as damages and ecological restoration with the infringer before the lawsuit. The legislation of the local people's congress also provides clear document support and basis for the in -depth development of the pre -sue system.

(3) The concept of integrating the "Maple Bridge Experience" conforms to the requirements of diversified judicial disputes

Promoting diversified disputes is an important judicial policy in my country, and it is also closely connected to the task of modernization of social governance. The birthplace of the "Fengqiao Experience" is Zhejiang, which integrates this concept to strengthen communication and coordination and pursuit of case handling the case is an important goal of the current procuratorial organs' civil public interest lawsuits. The author believes that the pre -compensation system for the ecological and environmental civil lawsuit is the embodiment of the idea of ​​"Maple Bridge Experience" throughout the judicial case. After sorting out and summing up, the author found that cases that can apply for the compensation system before the civil interest litigation system can be applied to the ecological environment field, the core characteristics of the public welfare damage are mild, the loss involved in compensation is relatively small, and the public welfare invades people to confess and regrets the wrong regrets. Good attitude. These characteristics also provide favorable conditions for the application of the "Maple Bridge Experience" in the application of the compensation system before the ecological environment civil public interest litigation. Article 1232, 1234, and 1235 of the Civil Code stipulate only the responsibility and liability of the public welfare invaders (including punitive compensation) of the public welfare invaders of environmental resources, and did not stipulate how the liability was implemented. Combined with the "Decision on Strengthening Procuratorate Public interest Litigation Work" in conjunction with the Standing Committee of the People's Congress of Zhejiang Province, the author believes that the procuratorial organs should vigorously promote the application and development of the pre -compensation system of the public interest litigation. Let the infringer not only feel the temperature of the justice, but also realize that illegal acts cannot be done. 2. Practice and theoretical analysis of the compensation system before the complaint system of ecological and environmental civil public interest litigation

March-June is the ban on the fishing period of the Qiantang River Basin. For the behavior of illegal electric fish such as illegal electric fish during the fishing period, in view of the fact that the number of fish illegally caught by the infringer is relatively large, the attitude of confession and regret is good. In addition, he is also willing to actively compensate for objective conditions. After careful consideration of the People's Procuratorate of the West Lake District of Hangzhou City, such cases are in line with the spirit of compensation for civil public interest litigation. Therefore, this type of case is basically compensated before the complaint of the ecological environment civil public interest litigation. It has achieved good results in judicial practice.

Using the pre -litigation compensation system to handle the civil and environmental civil public interest litigation cases, the procuratorial organs are required to respond to the objective assessment of public welfare damage, and strict demands for ecological restoration in the future (such as ecological repair costs and potential hazards of long -term governance costs, including punitive compensation costs, etc. To. However, in order to avoid the lawsuit requested by the procuratorial organs in the process of handling the case is much higher or not enough to meet the ecological restoration, the author believes that the procedure of the pre -claim case should be strictly regulated:

(1) Before the assessment of the complaint, it is objective and fair

The innovation and particularity of the pre -compensation system for civil and environmental civil public interest litigation determines that the procuratorial organs should conduct a scientific and rigorous pre -vitality assessment of public interest lawsuits, and reasonably limited the scope of cases of compensation before the application of civil public interest litigation. In order to finally achieve the goal of fairness and justice. To some extent, the establishment of the case handling mechanism will give the procuratorial organs greater judicial autonomy. In the face of various ecological and environmental civil public interest lawsuits, the choice of applicable litigation or chosen before the lawsuit is the prosecutor's primary problem. The author believes that to apply this system, it is necessary to undergo rigorous pre -complaint evaluation. The evaluation content is whether the following two conditions are met: one is that the public welfare damage is mild, and the social malignant impact is not great; Take the initiative to propose the willingness to compensate before the lawsuit. After meeting the above two conditions, the prosecutor's case team should also submit to the prosecutor's approved and the higher -level hospital for the record. After the prosecutor and the leaders of the higher hospital, the pre -compensation procedure can be initiated.

(2) Before the announcement must be made

Ecological and environmental civil public interest lawsuits need to be issued a pre -announcement before the claim of the lawsuit. This issue has become a problem that the procuratorial organs cannot be avoided by the procedure of compensation before the prosecution. At the annual meeting of the Zhejiang Provincial Law Law Law Research Association held in Chunchun County, Hangzhou City on November 28, 2020, some prosecutors during the unit discussion believe that such cases have mild public welfare damage in such cases, and social impacts do not have social impact. The severe particularity, in order to shorten the case handling period to improve the efficiency of case handling, there is no need to make pre -complaints. The author does not agree with the above views. The civil proceedings law clearly stipulates that relevant groups and organizations in civil public interest lawsuits have the priority of filed a public interest lawsuit. Therefore, the procuratorial organs will issue civil public interest lawsuits in any case. It can be used as a lawsuit in a public interest lawsuit, otherwise it will violate the provisions of Article 58 of the Civil Procedure Law. In essence, civil public interest litigation cases are still handled by civil public interest (mediation) system for civil public interest litigation.

(3) Compensation and mediation plan before the lawsuit should be scientific and reasonable

Pre -claims of the pre -litigation of ecological and environmental civil public interest litigation shall be formulated in accordance with the actual situation of public welfare damage, according to satisfaction or higher than the loss caused by the loss of public welfare damage as the standard, similar to the pre -claim evaluation procedure. After the case was drafted, the case of the case was reported to the prosecutor's approval and the superior procuratorate for the record. The mediation (compensation) before (compensation) before the ecological and environmental civil public interest litigation is the same as the solution of other diversified disputes. The fundamental purpose is to improve the governance mechanism of our society, or it is an important link to promote the modernization of social governance. In some public interest lawsuits that illegally fishing and destroying the forest and wood, the case handling team of the procuratorial organs can not only fix punishment of punishment compensation, but also the demands of replacement of replacement. Environmental governance judicial concepts, and under the guidance of this concept, reasonably determine the method of repaired liability and compensation responsibility. (4) The content of the compensation and mediation plan before the lawsuit needs to be fully realized

The application of the pre -compensation system for ecological and environmental civil public interest litigation shall be based on the premise of not harming the judicial authority of the procuratorial organs. Therefore, under the leadership of the procuratorial organs, the pre -compliment compensation agreement formulated and reached based on the actual and potential public welfare damage caused by the infringement must be implemented by the standard content as a standard. The significance of the pre -litigation compensation for mediation. If the public welfare invaders have reached a cooling agreement after the mediation agreement, how the procuratorial organs should deal with and deal with it are a very worthy of thinking. The author believes that the procuratorial organs need to have a discussion signing with the court on this issue, and jointly introduce the corresponding documents to deal with this problem. The public welfare invaders occurred after the mediation of the compensation and mediation of the compensation. Public welfare invaders with greater malignancy conduct serious punishment. Of course, the procuratorial organs shall clearly inform the public welfare infringement before signing the compensation agreement by the procuratorial organs.

3. Further improve and improve the vision of the pre -compensation system for the public interest lawsuit of ecological environment

(1) Expand the public's participation and ensure that the pre -compensation plan is reached

The real subject of public interests is the general public. Only the pre -litigation compensation plan set up by all sectors of society can maximize the purpose of protecting social welfare to the greatest extent. In the first case of civil interest litigation in Zhejiang Province, in the case of compensation and weaving snails before the lawsuit, the procuratorate invited the CPPCC, the personnel of the market supervision and management department, the staff of the consignment, and the representatives of the public. The mediation agreement will maximize the rationality of the compensation agreement. The extensive participation of the public on the one hand can give public welfare infringement a certain pressure, and put their actions under the supervision of the public, which is conducive to its better performance; The role of the law propaganda and education can achieve the purpose of handling the education and the organic unity of the legal effect and the social effect. The extensive participation of people from all walks of life is also conducive to the promotion and popularization of the pre -compensation system before the complaint of civil public interest litigation in the ecological and environmental civil public interest.

(2) The compulsory execution of the previous compensation agreement through the judicial confirmation procedure

An important purpose of the use of compensation system before the complaint system of ecological and environmental civil public interest litigation is to simplify judicial resources, improve the efficiency of case handling, and reasonably solve the problem with lower judicial costs. In order to prevent the compensation agreement from being fulfilled in place before the lawsuit, which led to damage to the credibility of judicial judicial and procuratorial authority, the author believes that through the introduction of judicial confirmation, it is necessary to restrict the public welfare invaders in accordance with the agreement and perform duties on time. The judicial confirmation of the pre -litigation compensation agreement is given to the forced enforcement. In addition, the procuratorial organs can also invite the notarization department to notarize the pre -claims of the pre -claim compensation confirmation case signed by the public welfare violation and the procuratorial organs. After the period, the pre -litigation compensation content is forced to execute. In this way, the pre -litigation compensation agreement and judicial compensation confirmation of the procuratorial organs have a mandatory guarantee for the confirmation of judicial compensation, which can effectively save judicial resources and achieve the purpose of the expected case handling.

(3) Determine the scope and limit of ecological and environmental public interest litigation before claims of compensation cases

According to the provisions of the Civil Procedure Law, civil public interest litigation cases can be adjusted, but the Civil Procedure Law does not stipulate which cases can be adjusted, and the boundaries of mediation are. As a first -line case handling personnel, in combination with the practice, the author believes that there are three types of ecological and environmental civil public welfare claims to negotiate and mediate: the first category requires a lawsuit request for public welfare invaders to restore the original state. Public welfare damage cannot restore the original state, and can only be relieved by replacement of replacement. At this time, the lawsuit request has room for mediation and negotiation. The second category, the amount of public welfare damage compensation related to litigation requests. The ecological environmental damage area is large and the long time is complicated. When different institutions, different identification and evaluation methods will obtain a large amount of compensation, the public welfare invaders will be questioned. The infringer will propose various objections. When this happens, from the perspective of saving judicial cases, you can choose to mediate. The third category, a request for apology. The author thinks that the release of the release and the release of the public knows that it can be negotiated without affecting the public's awareness. In addition, at the limits of mediation, if the ecological repair plan made by a professional institution determines the method, time, and amount of the defendant's repair, but under the leadership of the procuratorial organs, the new repair plan determined by the mediation is changed to the original restoration plan, and it will also be changed, and it will also be changed, and it will also be changed, and it will also be changed, and it will also be changed. It should be limited to the same public interest protection effect. (4) Establish a feedback mechanism for the people's opinions

The procuratorial organs shall establish a public opinion feedback mechanism, especially if they are not accepted after reviewing the public opinion of the public. Some scholars even believe that under the circumstances, the procuratorial organs should make a necessary explanation in response to the public opinion. If the public proposes an objection that is sufficient to affect the results of the compensation (mediation) agreement, or there is evidence to indicate that the procuratorial organs abuse the right to punish and reach a mediation agreement that damages the public welfare, the procuratorial organs shall take the initiative to restore the pre -litigation investigation procedure and organize relevant experts and scholars to conduct conduct Hearing. If the public has no objection to the mediation agreement or the final handling of the case, the procuratorial organs can promote the case in accordance with the established process. When the pre -litigation compensation agreement for replacement of the replacement category is performed or after the performance, the procuratorial organs may invite the masses to participate in the acceptance, such as public interest lawsuits that damage fishery resources. It can be invited to supervise the resumption of vegetation to the restoration of vegetation and the survival rate of planting trees. The people are satisfied with the people's satisfaction as an important public welfare infringement criterion.

*This article was published in the "Chinese Prosecutor" magazine September 2022 (judicial practice)

Produced | Zhao Peixian

Edit | Wu Shiyu

Review | Wu Ping

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