John Kuo, NRDC China Program Environmental Law Project Research Fellow
Environmental public interest litigation in China currently suffers from unclear legislation. That should change November 1, 2013 when Article 55 in the Civil Procedure Law comes into effect. The new amendment clearly allows for environmental civil suits:
“Article 55—In cases of environmental pollution and violation of numerous consumers’ rights, where public interests have been harmed, legally approved governmental agencies and relevant organizations are allowed to file public interest lawsuits in the People’s Court.”
Still, many NGOs are wondering who will qualify as a “legally approved body or relevant organization.” Last week during the Center for Legal Assistance to Pollution Victims (CLAPV)’s Judges and Lawyers training, a few law professors and judges discussed the implications of Article 55. Specifically, they discussed three factors that could possibly affect an NGO’s right to file public interest lawsuits: resources, expertise and focus.
Before filing public interest suits, NGOs might be required to prove that they have the necessary resources to file a case. One professor believed that NGOs would need to prove that they have adequate financial capital—each case often requires at least 200,000 RMB. Another said that NGOs would need merely to produce an annual financial report. An annual report, he argued, would prove that the NGO has an accounting system, a requirement that would weed out less-established NGOs.
In a further effort to identify qualified NGOs, courts might also require that NGOs have experts. The government is concerned that that litigants filing public interest lawsuits do not have enough knowledge. For example, NGOs might need to have lawyers or scientific experts before engaging in public interest litigation. Just as with resource requirements, the presence of experts would prove that an NGO has the capacity to file suit.
Besides experts and resources, courts might require NGOs to prove that their mission is relevant to the suit being filed. For example, an NGO that specializes in combating homelessness might be prevented from filing a suit concerning air pollution. Chinese NGOs have clauses in their mission statements stating they will engage in a “safeguarding of legal rights” (维权) concerning a certain topics. Courts might use NGO “safeguarding of legal rights” clauses might function as an indicator of relevancy.
Even after discussion of possible requirements for litigants, one professor was adamant that there would be no requirements whatsoever. No matter the result, the judges and law professors’ opinions will be heard. One of the judges present at the discussion is drafting a guiding opinion (指导意见) concerning Article 55. Legal opinions are often precursors to eventual legislation. The final guiding opinion (指导意见) by the Supreme People’s Court will be handed down before the law comes into effect.