Measures for the Implementation of the Pilot Program of Initiating Public Interest Actions by People's Procuratorates

 2018-05-22  69


Measures for the Implementation of the Pilot Program of Initiating Public Interest Actions by People's Procuratorates


· Area of Law: Prosecutorial Affairs

· Level of Authority: Judicial Interpretation

· Date issued:12-24-2015

· Effective Date:12-24-2015

· Status: Effective

· Issuing Authority: Supreme People's Procuratorate

 

Announcement of the Supreme People's Procuratorate
The Measures for the Implementation of the Pilot Program of Initiating Public Interest Actions by People's Procuratorates, as adopted at the 45th meeting of the twelfth Procuratorial Committee of the Supreme People's Procuratorate on December 16, 2015, which are hereby issued and shall come into force as of the date of issuance on Beijing, Inner Mongolia, Jilin, Jiangsu, Anhui, Fujian, Shangdong, Hubei, Guangdong, Guizhou, Yunnan, Shanxi, Gansu Provinces, Autonomous Regions and Municipalities Directly under the Central Government.
Supreme People's Procuratorate
December 24, 2015
Measures for the Implementation of the Pilot Program of Initiating Public Interest Actions by People's Procuratorates
(Adopted at the 45th meeting of the Twelfth Procuratorial Committee of the Supreme People's Procuratorate on December 16, 2015)
In order to strengthen the protection of public interests of the state and society and promote the administration by law and strict law enforcement by administrative authorities, these Measures are developed in accordance with the Decision of the Standing Committee of the National People's Congress on Authorizing the Supreme People's Procuratorate to Launch the Pilot Program of Initiating Public Interest Actions in Certain Areas and the Plan for the Pilot Program of Initiating Public Interest Actions and in light of the actual procuratorial work.
Chapter I Instituting a Civil Public Interest Action
Article 1 Upon discovery of any infringement upon the lawful rights and interests of numerous consumers and other act impairing the public interests of the society in the environmental pollution and food and drug safety in the process of performing its duties, the people's procuratorate may, in the absence of a rightful subject or under the circumstance where the rightful subject does not institute an action, institute a civil public interest action in the people's court.
The people's procuratorate shall perform such duties as investigation into duty-related crimes, approval or decision on arrest, examination before prosecution, charge and prosecution, and litigation supervision.
Article 2 In general, cases regarding civil public interest action instituted by the people's procuratorate shall be within the jurisdiction of a branch of the people's procuratorate and the people's procuratorate at the city or prefecture level at the place where the infringement act or impairment consequence occurs or at the domicile of the defendant.
Where the people's procuratorate with jurisdiction fails to exercise jurisdiction due to any special reason, the people's procuratorate at the higher level shall designate a people's procuratorate in other pilot area of this region for jurisdiction.
Where the people's procuratorate at the higher level deems that it is indeed necessary for it to handle a case within the jurisdiction of the people's procuratorate at the lower level, it shall handle such case. Where the people's procuratorate at the lower level deems that it is necessary for the people's procuratorate at the higher level to handle a case within its jurisdiction, it may request the people's procuratorate at the higher level to handle it.
Where the people's procuratorate with jurisdiction deems that it is necessary to transfer a case regarding civil public interest action within its jurisdiction to the people's procuratorate at the lower level for handling, it shall report to the people's procuratorate at the next higher level for approval.
Article 3 The department of civil and administrative matters shall be responsible for handling cases regarding civil public interest action instituted by the people's procuratorate.
Article 4 In the process of performing duties, where any business department of the people's procuratorate discovers any clue to cases that are possibly within the scope of cases regarding civil public interest action, it shall transfer the relevant materials to the department of civil and administrative matters.
Article 5 Where the people's procuratorate holds upon examination that any infringement upon the lawful rights and interests of numerous consumers in the environmental pollution and food and drug safety may impair the social and public interests, it shall report to the chief procurator for approval and decision on case filing, and register it at the case administration department.
A Written Decision on Case Filing shall be prepared for a case regarding civil public interest action which is placed on file according to the decision of the people's procuratorate.
Article 6 The people's procuratorate may investigate and verify the relevant evidence and information on such illegal activities as environmental pollution and infringement upon the lawful rights and interests of numerous consumers and impairment consequences in the following manners:
(1) consulting and duplicating the relevant case file materials related to administrative law enforcement;
(2) questioning violators and witnesses;
(3) collecting documentary evidence, physical evidence, audio-visual materials, and other evidence;
(4) consulting with specialized persons and relevant departments or trade associations for their opinions on special issues;
(5) authorizing the appraisal, evaluation, and auditing;
(6) inspecting the physical evidence and scene; and
(7) any other necessary investigation manners.
Such compulsory measures as restricting the personal freedom and sealing up, impounding, or freezing properties may not be taken in investigation and verification.
The administrative authority and other relevant entity and individual shall cooperate with the people's procuratorate in the investigation and verification of the relevant information.
Article 7 Where, in the process of handling a case regarding civil public interest action, the department of civil and administrative matters discovers any clue to duty-related crimes where the state functionary is suspected of committing embezzlement, bribe-taking, and malfeasance, it shall, in a timely manner, transfer such clue to the investigation department of duty-related crimes; and if it discovers other criminal clues, it shall transfer them to the investigation supervision department in a timely manner.
Article 8 After the examination of a case regarding civil public interest action instituted by the people's procuratorate is concluded, the undertaker shall prepare a report on the conclusion of examination. The report on the conclusion of examination shall describe case facts in a comprehensive, objective, and impartial manner and handling proposals shall be put forward in accordance with the legal provisions.
Article 9 Cases regarding civil public interest action shall be handled upon group discussions. Personnel participating in group discussions shall give specific comments on case facts, applicable laws, and handling proposals and state reasons. The group discussion opinions shall be formed on the basis of concluding discussion opinions in a comprehensive and objective manner.
The handling proposals formed upon group discussions shall be reported to the chief procurator for approval after the person in charge of the department of civil and administrative matters puts forward review opinions. Where the chief procurator deems necessary, he or she may request the procuratorial committee to decide the handling proposals upon discussion.
Article 10 For a case regarding civil public interest action that has been concluded upon examination, the people's procuratorate shall make the following decisions under various circumstances:
(1) concluding the examination;
(2) legally urging or giving support to the authority prescribed in law and other relevant organization to institute a civil public interest action; and
(3) instituting a civil public interest action.
Article 11 In the handling of a case regarding civil public interest action, where the people's procuratorate is to make decisions as prescribed in items (1) and (2) of Article 10, the case handling shall be concluded within three months from the date when the decision on placing it on file is made; and if the people's procuratorate is to make a decision as prescribed in item (3) of Article 10, the case handling shall be concluded within six months from the date when the decision on placing it on file is made. Where it is necessary to extend such time limit under special circumstances, the extension shall be subject to the approval of the chief procurator.
Article 12 Under any of the following circumstances, the people's procuratorate shall conclude the examination:
(1) Upon examination, there is no circumstance where the social public interests are impaired and it is necessary to investigate civil liabilities.
(2) The circumstance where the social public interests are impaired has been eliminated before the authority as prescribed in law and other relevant organization are legally urged or supported in instituting a civil public interest action, and the social public interests have been effectively remedied.
(3) Any other circumstance where the examination shall be concluded.
A Written Decision on the Conclusion of Examination shall be prepared after the examination is concluded.
Article 13 Before instituting a civil public interest action, the people's procuratorate shall perform the following pre-trial procedure:
(1) legally urging the authority as prescribed in law to institute a civil public interest action according to the law;
(2) proposing the relevant organization that meets the requirements as prescribed by law within the jurisdiction to institute a civil public interest action. Where the relevant organization proposes that it needs the support of the people's procuratorate in instituting an action, the people's procuratorate may, in accordance with the relevant legal provisions, give support to it in instituting a civil public interest action.
The authority as prescribed in law and the relevant organization shall, within one month upon receipt of the written opinions on urging the instituting of an action or the written procuratorial proposals, implement such opinions and proposals, and send a written reply regarding the implementation information to the people's procuratorate in a timely manner.
Article 14 Where, upon pre-trial procedure, the authority as prescribed in law and the relevant organization fail to institute a civil public interest action or there is no rightful subject to institute an action, and the social public interests are still being impaired, the people's procuratorate may institute a civil public interest action.
Article 15 The people's procuratorate shall institute a civil public interest action in the capacity of a public interest litigant. The defendant involved in a civil public interest action shall be a citizen, legal person, or other organization that commits an act of impairing the social public interests.
Article 16 The people's procuratorate may raise such claims as requiring the defendant to cease the infringement, excluding obstructions, eliminating dangers, restoring to the original state, compensating for losses, and extending a formal apology to the people's court.
Article 17 Before instituting a civil public interest action, the people's procuratorate shall submit the following materials:
(1) the written complaint of civil public interest action; and
(2) the preliminary evidentiary material proving that the act of the defendant has impaired the social public interests.
Article 18 Where the people's procuratorate institutes a civil public interest action, the defendant has no right of counterclaim.
Article 19 Where the people's procuratorate institutes a civil public interest action, it shall provide evidence to prove the facts serving as the basis for its claims or the facts serving as the basis for refuting the opinions of the opposite party, and the facts that the pre-trial procedure has been performed, unless it is otherwise prescribed by law.
Article 20 Under the circumstances where it is difficult to execute a judgment possibly due to the act of the defendant or other reasons or other impairment related to social public interests is caused, the people's procuratorate may propose that the people's court should preserve properties of the defendant and order the defendant to commit certain acts or prohibit the defendant from committing certain acts.
Where the people's court takes the property preservation measure according to the proposal of the people's procuratorate, it is unnecessary for the people's procuratorate to provide any guarantee.
Article 21 When the people's court holds an open trial of a case regarding civil public interest action instituted by the people's procuratorate, the people's procuratorate shall send personnel to appear in court.
Article 22 The tasks of procuratorial personnel appearing in court include:
(1) reading off the written complaint of civil public interest action;
(2) presenting and describing evidence investigated and verified by the people's procuratorate and conducting the cross-examination of the relevant evidence;
(3) participating in court investigation, holding a debate, and giving opinions in court; and
(4) participating in other litigation activities according to the law.
Where the procuratorial personnel discover that the court trial activities are illegal, they shall, during adjournment or after the end of court trial, put forward procuratorial proposals in the name of the people's procuratorate.
Article 23 In a case regarding civil public interest action, the people's procuratorate may reach reconciliation with the defendant and the people's court may conduct mediation. Neither the reconciliation agreement nor the mediation agreement may impair the social public interests.
Article 24 Where, in the trial process of a civil public interest action, all claims of the people's procuratorate are satisfied, the action may be withdrawn.
Article 25 Where any of local people's procuratorates at various levels holds that the ineffective judgment or ruling of first instance made by the people's court at the same level is actually erroneous, it shall file an appeal with the people's court at the next higher level.
Article 26 Where any of local people's procuratorates at various levels files an appeal against the ineffective judgment or ruling of first instance made by the people's court at the same level, the written appeal shall be submitted through the people's court and be forwarded to the people's procuratorate at the next higher level.
Where the people's procuratorate holds that the appeal is inappropriate, it may withdraw the appeal from the people's procuratorate at the same level and notify the people's procuratorate at the lower level.
Article 27 For a case of second instance where the people's procuratorate files an appeal or an appellant case where the people's court decides to hold an open trial, the people's procuratorate at the same level shall send personnel to appear in court of second instance.
ChapterII Instituting an Administrative Public Interest Action
Article 28 Where, in the process of performing its duties, the people's procuratorate discovers that an administrative authority with supervision and administration duties in the protection of ecological environment and resources, the protection of state-owned assets, and the transfer of the state-owned land use right performs its functions in violation of law or commits nonfeasance, causing impairment to the public interests of the state and society, and a citizen, legal person, or other social organization fails to or is incapable of instituting an action since they are of no direct interest relationship, the people's procuratorate may institute an administrative public interest action in the people's court.
The people's procuratorate shall perform such duties as investigation into duty-related crimes, approval or decision on arrest, examination before prosecution, charge and prosecution, and litigation supervision.
Article 29 The case regarding administrative public interest action instituted by the people's procuratorate shall, in general, be within the jurisdiction of the basic-level people's procuratorate at the place where the administrative authority that exercise its power in violation of law or commits nonfeasance is located.
Cases where the administrative authority that exercises its power in violation of law or commits nonfeasance is the people's government at or above the county level shall be within the jurisdiction of a branch of the people's procuratorate or the people's procuratorate at the city or prefecture level.
Where the people's procuratorate with jurisdiction fails to exercise jurisdiction due to any special reason, the people's procuratorate at the higher level shall designate a people's procuratorate in other pilot area of this region for jurisdiction.
Where the people's procuratorate at the higher level deems that it is indeed necessary for it to handle a case within the jurisdiction of the people's procuratorate at the lower level, it shall handle such case. Where the people's procuratorate at the lower level deems that it is necessary for the people's procuratorate at the higher level to handle a case within its jurisdiction, it may request the people's procuratorate at the higher level to handle it.
Article 30 The department of civil and administrative matters shall be responsible for handling cases regarding administrative public interest actions instituted by the people's procuratorate.
Article 31 In the process of performing duties, where any business department of the people's procuratorate discovers any clue to cases that are possibly within the scope of cases regarding administrative public interest action, it shall transfer the relevant materials to the department of civil and administrative matters.
Article 32 Where the people's procuratorate holds upon examination that the illegal exercise of power or nonfeasance of an administrative authority with supervision and administration duties in the protection of ecological environment and resources, the protection of state-owned assets, and the transfer of state-owned land use right may impair the public interests of the state and society, the people's procuratorate shall request the chief procurator to approve and make a decision on arrest and register it at the case administration department.
A Written Decision on Case Filing shall be prepared for a case regarding administrative public interest action which is placed on file according to the decision of the people's procuratorate.
Article 33 The people's procuratorate may, in the following manners, investigate and verify the relevant evidence and information on the relevant administrative authority's illegal exercise of power or nonfeasance:
(1) consulting and duplicating case file materials related to administrative law enforcement;
(2) inquiring the relevant personnel of the administrative authority as well as the administrative counterpart, interested party, and witness;
(3) collecting documentary evidence, physical evidence, audio-visual materials, and other evidence;
(4) consulting with specialized persons and relevant departments or trade associations for their opinions on special issues;
(5) authorizing the appraisal, evaluation, and auditing;
(6) inspecting the physical evidence and scene; and
(7) any other necessary investigation manners.
Such compulsory measures as restricting the personal freedom and sealing up, impounding, or freezing properties may not be taken in the investigation and verification.
The administrative authority and other relevant entity and individual shall cooperate with the people's procuratorate in the investigation and verification of the relevant information.
Article 34 Where, in the process of handling a case regarding administrative public interest action, the department of civil and administrative matters discovers any clue to duty-related crimes where the state functionary is suspected of committing embezzlement, bribe-taking, and malfeasance, it shall, in a timely manner, transfer such clue to the investigation department of duty-related crimes; and if it discovers other criminal clues, it shall transfer them to the investigation supervision department in a timely manner.
Article 35 After the examination of a case regarding administrative public interest action instituted by the people's procuratorate is concluded, the undertaker shall prepare a report on the conclusion of examination. The report on the conclusion of examination shall describe case facts in a comprehensive, objective, and impartial manner and handling proposals shall be put forward in accordance with the legal provisions.
Article 36 Cases regarding administrative public interest action shall be handled upon group discussions. Personnel participating in group discussions shall give specific comments on case facts, applicable laws, and handling proposals and state reasons. The group discussion opinions shall be formed on the basis of concluding discussion opinions in a comprehensive and objective manner.
The handling proposals formed upon group discussions shall be reported to the chief procurator for approval after the person in charge of the department of civil and administrative matters puts forward review opinions. Where the chief procurator deems necessary, he or she may request the procuratorial committee to decide the handling proposals.
Article 37 For a case regarding administrative public interest action whose examination has been concluded, the people's procuratorate shall make the following decisions under various circumstances:
(1) concluding the examination;
(2) putting forward procuratorial proposals; and
(3) instituting an administrative public interest action.
Article 38 In the handling of a case regarding administrative public interest action, where the people's procuratorate is to make decisions as prescribed in items (1) and (2) of Article 37, the case handling shall be concluded within three months from the date when the decision on placing it on file is made; and if the people's procuratorate is to make a decision as prescribed in item (3) of Article 37, the case handling shall be concluded within six months from the date when the decision on placing it on file is made. Where it is necessary to extend such time limit under special circumstances, the extension shall be subject to the approval of the chief procurator.
Article 39 Under any of the following circumstances, the people's procuratorate shall conclude the examination:
(1) It is found upon examination that there is no circumstance where an administrative authority illegally exercises its power or commits nonfeasance and the public interests of the state and society are impaired.
(2) Before the people's procuratorate puts forward procuratorial proposals, the administrative authority has corrected its illegal administrative activities or has performed its duties according to the law.
(3) Any other circumstance where examination shall be concluded.
A Written Decision on the Conclusion of Examination shall be prepared after the examination is concluded.
Article 40 Before instituting an administrative public interest action, the people's procuratorate shall first put forward procuratorial proposals to the corresponding administrative authority and urge the administrative authority to correct its illegal activities or perform its duties according to the law. The administrative authority shall, within one month upon receipt of the written procuratorial proposals, implement such procuratorial proposals and send a written reply regarding the implementation information to the people's procuratorate in a timely manner.
Article 41 Where, upon pre-trial procedure, the administrative authority refuses to correct its illegal activities or perform its statutory duties and the public interests of the state and society are still being impaired, the people's procuratorate may instituted an administrative public interest action.
Article 42 The people's procuratorate shall institute an administrative public interest action in the capacity of a public interest litigant. The defendant in an administrative public interest action is an administrative authority that illegally exercises its power or commits nonfeasance in the protection of ecological environment and resources, the protection of state-owned assets, and the transfer of state-owned land use right or an organization as authorized according to the laws, regulations, and rules.
Article 43 The people's procuratorate may raise such claims as revoking or partially revoking illegal administrative actions, performing the statutory duties within a prescribed time limit, and confirming the illegality or invalidity of an administrative action to the people's court.
Article 44 Before instituting an administrative public interest action, the people's procuratorate shall submit the following materials:
(1) the written complaint of civil public interest action; and
(2) the preliminary evidentiary materials on impairment of the public interests of the state and society.
Article 45 Where the people's procuratorate institutes an administrative public interest action, it shall bear the burden of proof for the following matters:
(1) proving that the action meets the statutory requirements;
(2) proving the facts that the people's procuratorate has performed the pre-trial procedure and put forward procuratorial proposals and the administrative authority has refused to correct its illegal administrative action or perform its statutory duties; and
(3) other matters for which the people's procuratorate shall bear the burden of proof.
Article 46 When the people's court holds an open trial of a case regarding administrative public interest action instituted by the people's procuratorate, the people's procuratorate shall send personnel to appear in court.
Article 47 The tasks of procuratorial personnel appearing in court include:
(1) reading off the written complaint of administrative public interest action;
(2) presenting and describing evidence investigated and verified by the people's procuratorate and conducting the cross-examination of the relevant evidence;
(3) participating in court investigation, holding a debate, and giving opinions in court; and
(4) participating in other litigation activities according to the law.
Where the procuratorial personnel discover that the court trial activities are illegal, they shall, during adjournment or after the end of court trial, put forward procuratorial proposals in the name of the people's procuratorate.
Article 48 Mediation shall not apply to cases regarding administrative public interest action.
Article 49 In the trial process of an administrative public interest action, the defendant corrects its illegal action or performs its duties according to the law, resulting in the satisfaction of all claims of the people's procuratorate, the people's procuratorate may change its claims, request the court to make a judgment and confirm that the administrative action is illegal, or withdraw the action.
Article 50 Where any local people's procuratorates at various levels holds that the ineffective judgment or ruling of first instance made by the people's court at the same levels is actually erroneous, it shall file an appeal with the people's court at the next higher level.
Article 51 Where any of local people's procuratorates at various levels files an appeal against the ineffective judgment or ruling of first instance made by the people's court at the same level, the written appeal shall be submitted through the people's court of original trial and be forwarded to the people's procuratorate at the next higher level.
Where the people's procuratorate at the higher level holds that the appeal is inappropriate, it may withdraw the appeal from the people's procuratorate at the same level and notify the people's procuratorate at the lower level.
Article 52 For a case of second instance where the people's procuratorate files an appeal or an appellant case where the people's court decides to hold an open trial, the people's procuratorate at the same level shall send personnel to appear in court of second instance.
ChapterIII Other Provisions
Article 53 Where any of local people's procuratorates at various levels is to decide to institute a public interest action in the people's court, it shall report level by level to the Supreme People's Procuratorate for examination and approval.
The case regarding public interest action approved by the people's procuratorate upon examination shall be concluded within one month upon receipt of the request for instructions on the case. Where it is necessary to extend such time limit under special circumstances, the extension shall be subject to the approval of the chief procurator.
Article 54 The materials subject to approval submitted by the people's procuratorate at the provincial level to the Supreme People's Court include:
(1) the form for level-by-level approval of a case regarding public interest action;
(2) the request for instructions of the people's procuratorate at the provincial level;
(3) the report on the conclusion of case examination and the records of group discussions issued by the department of civil and administrative matters of the people's procuratorate at the provincial level;
(4) the written complaint of civil public interest action; and
(5) the directory of case evidence and key evidence materials.
Article 55 The people's procuratorate shall be exempted from the litigation fees for instituting a public interest action.
Article 56 The provisions of the Civil Procedure Law, the Administrative Procedure Law as well as the relevant judicial interpretations shall apply to matters not described in these Measures.
ChapterIV=== Supplementary Provisions
Article 57 These Measures shall only apply to Beijing Municipality, Inner Mongolia Autonomous Region, Jilin Province, Jiangsu Province, Anhui Province, Fujian Province, Shandong Province, Hubei Province, Guangdong Province, Guizhou Province, Yunnan Province, Shaanxi Province, and Gansu Province.
Article 58 These Measures shall come into force on the date of issuance. Where the judicial interpretations and regulatory documents previously issued by the Supreme People's Procuratorate are inconsistent with the provisions of these Measures, these Measures shall prevail.