Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Procuratorial Public Interest Lawsuits

March 2, 2018

(Adopted at the 1734th meeting of the Judicial Committee of the Supreme People's Court on February 23, 2018 and at the 73rd meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on February 11, 2018, coming into force as of March 2, 2018)

I. General Provisions

Article 1 To precisely apply the rules on filing public interest lawsuits by the people's procuratorates, as set out in the Civil Procedure Law of the People's Republic of China and the Administrative Procedure Law of the People's Republic of China, these Interpretations are formulated in consideration of judicial and procuratorial practices.

Article 2 Enabling people's courts and people's procuratorates to handle public interest lawsuits is mainly aimed at fully playing the role of conducting judicial trials and legal supervision, upholding the authority of the Constitution, maintaining social fairness and justice, safeguarding national benefits and public interests, urging eligible subjects to exercise the right of lodging public interest lawsuits by law, and promoting law-based administration and strict law enforcement.

Article 3 When handling public interest lawsuits, people's courts and people's procuratorates shall abide by the legal provisions specified in the Constitution, observe the principles of the lawsuit system, and follow the law on the exercising of trial and procuratorial rights.

Article 4 Where a people's procuratorate files a public interest lawsuit in the capacity of prosecutor for the sake of the public, it shall enjoy relevant lawsuit-related rights in accordance with the Civil Procedure Law and the Administrative Procedure Law, and perform corresponding litigation obligations, unless otherwise stipulated by laws and judicial interpretations.

Article 5 Where a municipal (prefecture) people's procuratorate or its branch opens a public interest proceeding of first instance, the case shall fall under the jurisdiction of the intermediate people's court at the place where the infringements occur or the defendant is domiciled.
Where a grassroots people's procuratorate commences public interest proceedings of the first instance, the case shall fall under the jurisdiction of the grassroots people's court at the place where the sued administrative organ is located.

Article 6 When handling a public interest lawsuit, the people's procuratorate may open investigations among related administrative organs and other organizations and citizens to collect evidential materials; the related administrative organs and other organizations and citizens shall fully cooperate; where it is necessary to take measures to preserve evidence, such measures shall comply with the applicable rules specified in the Civil Procedure Law and the Administrative Procedure Law.

Article 7 Where the people's court tries a public interest lawsuit of the first instance filed by the people's procuratorate, the people's jury system may apply.

Article 8 Before the people's court opens a court session to hear the public interest lawsuit filed by a people's procuratorate, it shall serve a notice of appearing in court on the people's procuratorate three days prior to the court session.
The people's procuratorate shall send a functionary to the court, and submit a written notice of having a functionary appear in court to the people's court within three days of receipt of the notice from the people's court. The written notice of having a functionary appear in court shall clearly specify the name and legal position of the functionary and what duties are due in court.

Article 9 The procuratorial functionary shall perform the following duties at the court,
1. Reading out the indictment for the public interest lawsuit;
2. Presenting and explaining the evidence the people's procuratorate has collected through investigations, and cross-examining the relevant evidence;
3. Engaging in court investigations, and giving arguments and opinions;
4. Carrying out other lawsuit-related activities by law.

Article 10 Where the people's procuratorate disagrees with the decision or ruling of the people's court of the first instance, it may lodge an appeal to the people's court at the next higher level.

Article 11 When the people's court hears the case of the second instance, the people's procuratorate that files the public interest lawsuit shall send a functionary to the court, and the people's procuratorate at the next higher level may send a functionary to attend the trial.

Article 12 Where the decision or ruling issued for the public interest lawsuit filed by the people's procuratorate becomes legally effective, but the defendant refuses the execution thereof, the people's court shall transfer the case for execution.

II. Civil Lawsuits for Public Interests

Article 13 Where the people's procuratorate plans to file a public interest lawsuit, as it finds when it performs its duties that there exists behavior that impairs the eco-environment and resource protection, or damages public benefits, such as infringements of the legal rights and interests of a large group of consumers, in the food and drug field, it shall make an announcement for this purpose for thirty days.
Where the organs and related organizations specified in the law do not file a lawsuit upon the expiry of the announcement period, the people's procuratorate may bring a prosecution to the people's court.

Article 14 To file a public interest lawsuit, the people's procuratorate shall submit the following materials,
1. Indictment for the lawsuit filed for public interests, and several copies thereof according to the number of defendants;
2. Preliminary evidential materials proving that the defendant's behavior has harmed public benefits; and
3. Evidential materials that the procuratorial organ has fulfilled the announcement procedures.

Article 15 Where the people's procuaratorate files a civil lawsuit for public interests in accordance with the second paragraph of Article 55 of the Civil Procedure Law, the people's court shall file the case, provided that Item 2 through Item 4 of Article 119 of the Civil Procedure Law and prosecuting conditions hereof are satisfied.

Article 16 Where the defendant proposes a counterclaim in the civil lawsuit for public interests filed by the people's procuratorate, the people's court shall dismiss the counterclaim.

Article 17 After accepting a civil lawsuit for public interests filed by the people's procuratorate, the people's court shall, within five days of the day on which the case is filed, serve a copy of the indictment on the defendant.
Where the people's procuratorate has fulfilled the pre-trial announcement procedures, the people's court will not issue an announcement after the case has been filed.

Article 18 Where the people's court holds that the claim proposed by the people's procuratorate is insufficient to protect public benefits, it may explain before the people's procuratorate, advising the people's procuratorate to change the claim or raise an additional claim, such as ceasing the infringements and having the objects restored to their previous condition.

Article 19 When a civil lawsuit for public benefits is being tried, if the people's procuratorate applies for withdrawal of the case, as the claim proposed by the people's procuratorate has been fully fulfilled, the people's court shall uphold the application.

Article 20 When the people's procuratorate brings a public criminal prosecution against a party with criminal behavior that impairs public benefits, such as damage to the protection of the eco-environment and resources and infringements of the legal rights and interests of a large number of consumers in the food and drug field, it may bring an incidental civil lawsuit for public benefits at the same time, which will be heard by the same group of judicial officers of the people's court.
The criminal prosecution and the incidental civil lawsuit for public benefits filed by the people's procuratorate shall fall under the jurisdiction of the people's court in charge of trying the criminal part.

III. Administrative Lawsuits for Public Interests

Article 21 Where the people's procuratorate finds when it performs its duties that an administrative organ responsible for regulating certain areas, such as the protection of the eco-environment and resources, food and drug safety, protection of State-owned assets and transfer of the right to use State-owned land, discharges its duties in an illegal manner or neglects its duties, which results in damage to the national interests or public benefits, it shall raise procuratorial opinions with the administrative organ, and urge it to perform its duties in a legal way.
The administrative organ shall perform its duties by law within two months of receipt of the procuratorial opinions from the procuratorate, and reply in writing to the people's procuratorate. In urgent circumstances where the national interests or public benefits continue to be jeopardized, the administrative organ has to reply in writing within 15 days.
Where the administrative organ fails to perform its duties by law, the people's procuratorate shall bring a prosecution to the people's court.

Article 22 To bring an administrative lawsuit for public benefits, the people's procuratorate shall submit the following materials,
1. Indictment for the administrative lawsuit for public benefits, and several copies thereof depending on the number of defendants;
2. Evidential materials that the defendant's illegal performance of its duties or failure to perform its duties has led to harm to the national interests or public benefits; and
3. Evidential materials that the people's procuratorate has fulfilled the pre-trial procedures but the administrative organ concerned stills refuses to perform its duties by law or make corrections.

Article 23 Where the people's procuaratorate files an administrative lawsuit for public interests in accordance with the fourth paragraph of Article 25 of the Administrative Procedure Law, the people's court shall file the case, provided that Item 2 through Item 4 of Article 49 of the Administrative Procedure Law and prosecuting conditions hereof are satisfied.

Article 24 When the administrative lawsuit for public benefits is being tried, if the people's procuratorate applies for withdrawal of the case, as the defendant has made corrections or performed its duties by law, resulting that the claim of the people's procuratorate has all been realized, the people's court shall uphold the application; where the people's procuratorate changes its claim, requesting identification of the administrative behavior at issue as illegal, the people's court shall rule to identify the behavior as illegal.

Article 25 The people's court shall rule on administrative lawsuits for public benefits differently under the following circumstances,
1. Where the administrative behavior at issue falls under a circumstance specified in Article 74 or Article 75 of the Administrative Procedure Law, the ruling shall identify the behavior as illegal or invalidate it, and order the administrative organ to take remedial actions at the same time;
2. Where the administrative behavior at issue falls under a circumstance specified in Article 70 of the Administrative Procedure Law, the ruling shall rescind the behavior in full or in part, and may order the sued administrative organ to exercise the correct administrative behavior;
3. Where the sued administrative organ fails to perform its statutory duties, the ruling shall order it to do so within the given time limit;
4. Where the administrative penalty imposed by the sued administrative organ is obviously unjustified, or its other administrative behavior truly involves wrongful determination of the fine amount, the ruling shall order it to make a correction; or
5. Where the administrative behavior at issue was carried out with hard evidence under the right laws or regulations through certain legal procedures, and is not beyond the administrative organ's power and is considered not obviously unjustified, and the administrative organ has not abused its power, or the argument made by the people's procuratorate to justify its claim that the sued administrative organ shall perform its statutory duties is untenable, the ruling shall dismiss the procuratorate's claim.
The people's court may inform the people's government, to which the sued administrative organ is affiliated, or other related functional departments of the ruling.

IV. Supplementary Provisions

Article 26 Other items not clarified in these Interpretations shall be governed by the Civil Procedure Law, the Administrative Procedure Law and relevant judicial interpretations.

Article 27 These Interpretations shall come into force as of March 2, 2018.
Where there is any discrepancy between these Interpretations and other judicial interpretations and normative documents previously released by the Supreme People's Court and the Supreme People's Procuratorate, these Interpretations shall prevail.