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The long-awaited amendment of China’s Civil Procedure Law has taken a crucial step. On October 28, the Standing Committee of the National People’s Congress (NPC), China’s top legislature, reviewed a draft amendment to the law for the first time.
“With the rapid development of China’s economy and the country’s increasingly complex legal system, more civil and commercial disputes have arisen in recent years and aggrieved parties are increasingly willing to go to the courts to resolve their disputes,”said Wang Shengming, Deputy Director of the Legislative Affairs Commission of the NPC Standing Committee.
But, according to Wang, the current law is no longer able to cope with China’s socioeconomic realities.
The current Civil Procedure Law took effect in 1991. In 2007, minor revisions were made, which mainly focused on problems in enforcement and retrial procedures.
“The ongoing amendment will pay greater attention to guaranteeing the rights of litigants, enhancing legal supervision and improving implementation procedures,”Wang said.
Class suits
In June, two drilling platforms of an offshore oilfield operated by ConocoPhillips China, a subsidiary of U.S. energy giant ConocoPhillips, were found to have leaked oil into the Bohai Gulf. According to a November 12 statement of the State Oceanic Administration of China, the oil spill polluted 6,200 square km of the Bohai Sea, an area roughly nine times the size of Singapore.
After the accident, some individual Chinese citizens and environmental organizations tried to sue ConocoPhillips China for environmental damage, but their requests were turned down by courts.
Legal experts attributed the rejection to the current Civil Procedure Law’s failure to empower authorities, individuals and civil organizations to file lawsuits against those who violate the public interest.
Under the current law, only government agencies and people directly affected by an incident are allowed to sue over environmental pollution and food safety, which has prevented many cases from being filed.
“When pollution occurs in some place, we can do little to hold the polluters accountable because we are not recognized by the law as plaintiffs,” said Ma Yong, a worker at the Environmental Law Center of the All-China Environment Federation, a nongovernmental environmental organization in Beijing.
The draft amendment that is being reviewed proposes to allow related authorities and civil organizations to represent the public and file lawsuits concerning violations of public interests, such as environmental pollution and consumer rights infringement.
During the NPC Standing Committee’s review of the draft amendment, many legislators called for a specific definition of the related authorities that are entitled to initiate class actions.
Ren Maodong, a member of the NPC Standing Committee, said that departments of administration are often reluctant plaintiffs in class actions, as many incidents occur as a result of their neglect of duty. In other cases, local and departmental protectionism prevent authorities involved from playing their due role.
In the case of the Bohai Sea oil spill, the State Oceanic Administration is expected to file litigations against ConocoPhillips China on behalf of the state under the Marine Environment Protection Law of China. The SOA declared that it would sue for ecological compensation. However, the proceedings haven’t started five months after the accident and the administration has failed to provide an explanation.
Meanwhile, some legal experts believe that the “related authorities” should also include departments of prosecution, given that policy guidance is also one of their functions.
According to the draft amendment, civil organizations are considered as qualified plaintiffs to file class suits. Ma explained that class suits are often difficult for a single litigant to sustain, as the cases are usually long and drawn out and require multiple court appearances. Comparatively, civil organizations possess more ample financial and technical resources, as well as a greater capacity to collect, preserve and make use of evidence, which makes them better plaintiffs.
Recently, local judicial authorities in Guizhou, Yunnan, Hainan, Shandong and Jiangsu provinces established special courts in succession to deal with environmental lawsuits. Also, some localities have issued regulations to allow civil organizations to file public interest litigation.
The All-China Environment Federation, for example, has taken polluters to environment courts in Guiyang in Guizhou and Wuxi in Jiangsu and won the lawsuits.
Some legislators also suggest that ordinary citizens whose interests are not directly related to the case could also be plaintiffs in class suits, saying it would boost citizens’participation in public affairs.
However, Chang Cheng, a program officer from Friends of Nature, another nongovernmental environmental organization based in Beijing, said government support is vital for the success of class suits, especially those involving environmental pollution.
On October 19, the intermediate court in Qujing, Yunnan accepted a class suit filed by Friends of Nature and the local environmental protection bureau against a chemical plant that is said to have illegally dumped more than 5,000 tons of highly toxic heavy metal in three townships in the city.
“Allowing civil organizations to initiate class action litigation may cause a rush of lawsuits, so a judicial interpretation providing details on how this article should be applied is necessary,” Wang said.
Litigants’ rights
“The draft amendment has expanded litigants’ rights, in the hope of reducing the difficulties in filing a suit, collecting evidence and appealing,” said Tang Weijian, a professor at the Law School of Beijing-based Renmin University of China.
According to Tang, the procedural demands of China’s legal system make it difficult for litigants to proceed successfully.
In order to solve the problem, the draft amendment stipulates that “courts shall ensure litigants’ rights to sue according to the law and shall make a written order within seven days to inform the litigants if their complaints are rejected. The litigants, if not satisfied with the order, may file an appeal.”
“The stipulation sets out rules to protect the litigant’s right to sue. It is big progress for the Civil Procedure Law,” said Hong Daode, a professor at the Criminal Justice College of China University of Political Science and Law in Beijing. “It will further standardize courts’ filing procedures and raise their prestige.”
Despite this, Tang said that many of the other rights of litigants, such as the right to appeal and to access to judicial assistance, should also be protected.
Collecting evidence has long been a challenge for claimants in China. The current Civil Procedure Law stipulates a party shall have the responsibility to provide evidence in support of its own propositions, but it is often difficult for litigants to gather enough evidence.
“Hence the right to judicial assistance should be consistent,” he said, also proposing the enactment of a civil evidence law as a possible solution.
Concerning the right to appeal, Tang suggested the establishment of a system that allows people to appeal to procuratorates instead of courts. “If the procuratorate considers a court ruling wrong and decides to lodge a protest, the court must retry the case and prosecutors will oversee the process,” he said.
Small claims
Another highlight of the draft amendment is a new article about small claims cases. The article reads that when a primarylevel court or a circuit tribunal sent by a primary-level court hear a civil case involving less than 5,000 yuan ($732.06), its ruling shall be considered final and cannot be appealed to a higher-level court.
Currently, China adopts the system where the second instance is the final instance when dealing with civil lawsuits. If a party refuses to accept the ruling of first instance at a local court, he or she can file an appeal with the court at the next higher level to start the second instance. Hence, the implementation of the small claims procedures will mean a change of judicial hierarchy.
In recent years, with the number of civil lawsuits rising quickly, local courts have struggled to deal effectively with the volume of cases.
“Although the current Civil Procedure Law contains provisions on summary procedures, it remains too complicated to resolve small disputes efficiently in practice,” said Xiao Jianguo, a professor at the Law School of Renmin University of China.
Supporters of the proposed reform hope it will help simplify litigation procedures and save judicial resources.
However, Xiao warned, a simple provision cannot solve all the problems concerning small claims cases and may have negative effects.
Small claims cases are often traffic accidents, medical torts and personal injury claims. In these cases, both parties are usually ordinary citizens.
According to the current law, both parties of a civil lawsuit can reach a settlement if they accept the conciliation plan proposed by the court. As a result, small claims cases were solved by conciliation or on-scene investigations.
“Once the system of first instance being final is brought into operation, courts may not be willing to push both parties to reconcile,” Xiao said.
In addition, according to the proposed small claims procedures, a party who raises an action is obliged to provide evidence in support of his allegations. But Xiao believes it is hard for an ordinary individual to collect enough evidence, so the stipulation may intensify conflicts between involved parties.
“The law should give litigants of small claims lawsuits the right to appeal. It is a necessary judicial right for them,” he said.
“With the rapid development of China’s economy and the country’s increasingly complex legal system, more civil and commercial disputes have arisen in recent years and aggrieved parties are increasingly willing to go to the courts to resolve their disputes,”said Wang Shengming, Deputy Director of the Legislative Affairs Commission of the NPC Standing Committee.
But, according to Wang, the current law is no longer able to cope with China’s socioeconomic realities.
The current Civil Procedure Law took effect in 1991. In 2007, minor revisions were made, which mainly focused on problems in enforcement and retrial procedures.
“The ongoing amendment will pay greater attention to guaranteeing the rights of litigants, enhancing legal supervision and improving implementation procedures,”Wang said.
Class suits
In June, two drilling platforms of an offshore oilfield operated by ConocoPhillips China, a subsidiary of U.S. energy giant ConocoPhillips, were found to have leaked oil into the Bohai Gulf. According to a November 12 statement of the State Oceanic Administration of China, the oil spill polluted 6,200 square km of the Bohai Sea, an area roughly nine times the size of Singapore.
After the accident, some individual Chinese citizens and environmental organizations tried to sue ConocoPhillips China for environmental damage, but their requests were turned down by courts.
Legal experts attributed the rejection to the current Civil Procedure Law’s failure to empower authorities, individuals and civil organizations to file lawsuits against those who violate the public interest.
Under the current law, only government agencies and people directly affected by an incident are allowed to sue over environmental pollution and food safety, which has prevented many cases from being filed.
“When pollution occurs in some place, we can do little to hold the polluters accountable because we are not recognized by the law as plaintiffs,” said Ma Yong, a worker at the Environmental Law Center of the All-China Environment Federation, a nongovernmental environmental organization in Beijing.
The draft amendment that is being reviewed proposes to allow related authorities and civil organizations to represent the public and file lawsuits concerning violations of public interests, such as environmental pollution and consumer rights infringement.
During the NPC Standing Committee’s review of the draft amendment, many legislators called for a specific definition of the related authorities that are entitled to initiate class actions.
Ren Maodong, a member of the NPC Standing Committee, said that departments of administration are often reluctant plaintiffs in class actions, as many incidents occur as a result of their neglect of duty. In other cases, local and departmental protectionism prevent authorities involved from playing their due role.
In the case of the Bohai Sea oil spill, the State Oceanic Administration is expected to file litigations against ConocoPhillips China on behalf of the state under the Marine Environment Protection Law of China. The SOA declared that it would sue for ecological compensation. However, the proceedings haven’t started five months after the accident and the administration has failed to provide an explanation.
Meanwhile, some legal experts believe that the “related authorities” should also include departments of prosecution, given that policy guidance is also one of their functions.
According to the draft amendment, civil organizations are considered as qualified plaintiffs to file class suits. Ma explained that class suits are often difficult for a single litigant to sustain, as the cases are usually long and drawn out and require multiple court appearances. Comparatively, civil organizations possess more ample financial and technical resources, as well as a greater capacity to collect, preserve and make use of evidence, which makes them better plaintiffs.
Recently, local judicial authorities in Guizhou, Yunnan, Hainan, Shandong and Jiangsu provinces established special courts in succession to deal with environmental lawsuits. Also, some localities have issued regulations to allow civil organizations to file public interest litigation.
The All-China Environment Federation, for example, has taken polluters to environment courts in Guiyang in Guizhou and Wuxi in Jiangsu and won the lawsuits.
Some legislators also suggest that ordinary citizens whose interests are not directly related to the case could also be plaintiffs in class suits, saying it would boost citizens’participation in public affairs.
However, Chang Cheng, a program officer from Friends of Nature, another nongovernmental environmental organization based in Beijing, said government support is vital for the success of class suits, especially those involving environmental pollution.
On October 19, the intermediate court in Qujing, Yunnan accepted a class suit filed by Friends of Nature and the local environmental protection bureau against a chemical plant that is said to have illegally dumped more than 5,000 tons of highly toxic heavy metal in three townships in the city.
“Allowing civil organizations to initiate class action litigation may cause a rush of lawsuits, so a judicial interpretation providing details on how this article should be applied is necessary,” Wang said.
Litigants’ rights
“The draft amendment has expanded litigants’ rights, in the hope of reducing the difficulties in filing a suit, collecting evidence and appealing,” said Tang Weijian, a professor at the Law School of Beijing-based Renmin University of China.
According to Tang, the procedural demands of China’s legal system make it difficult for litigants to proceed successfully.
In order to solve the problem, the draft amendment stipulates that “courts shall ensure litigants’ rights to sue according to the law and shall make a written order within seven days to inform the litigants if their complaints are rejected. The litigants, if not satisfied with the order, may file an appeal.”
“The stipulation sets out rules to protect the litigant’s right to sue. It is big progress for the Civil Procedure Law,” said Hong Daode, a professor at the Criminal Justice College of China University of Political Science and Law in Beijing. “It will further standardize courts’ filing procedures and raise their prestige.”
Despite this, Tang said that many of the other rights of litigants, such as the right to appeal and to access to judicial assistance, should also be protected.
Collecting evidence has long been a challenge for claimants in China. The current Civil Procedure Law stipulates a party shall have the responsibility to provide evidence in support of its own propositions, but it is often difficult for litigants to gather enough evidence.
“Hence the right to judicial assistance should be consistent,” he said, also proposing the enactment of a civil evidence law as a possible solution.
Concerning the right to appeal, Tang suggested the establishment of a system that allows people to appeal to procuratorates instead of courts. “If the procuratorate considers a court ruling wrong and decides to lodge a protest, the court must retry the case and prosecutors will oversee the process,” he said.
Small claims
Another highlight of the draft amendment is a new article about small claims cases. The article reads that when a primarylevel court or a circuit tribunal sent by a primary-level court hear a civil case involving less than 5,000 yuan ($732.06), its ruling shall be considered final and cannot be appealed to a higher-level court.
Currently, China adopts the system where the second instance is the final instance when dealing with civil lawsuits. If a party refuses to accept the ruling of first instance at a local court, he or she can file an appeal with the court at the next higher level to start the second instance. Hence, the implementation of the small claims procedures will mean a change of judicial hierarchy.
In recent years, with the number of civil lawsuits rising quickly, local courts have struggled to deal effectively with the volume of cases.
“Although the current Civil Procedure Law contains provisions on summary procedures, it remains too complicated to resolve small disputes efficiently in practice,” said Xiao Jianguo, a professor at the Law School of Renmin University of China.
Supporters of the proposed reform hope it will help simplify litigation procedures and save judicial resources.
However, Xiao warned, a simple provision cannot solve all the problems concerning small claims cases and may have negative effects.
Small claims cases are often traffic accidents, medical torts and personal injury claims. In these cases, both parties are usually ordinary citizens.
According to the current law, both parties of a civil lawsuit can reach a settlement if they accept the conciliation plan proposed by the court. As a result, small claims cases were solved by conciliation or on-scene investigations.
“Once the system of first instance being final is brought into operation, courts may not be willing to push both parties to reconcile,” Xiao said.
In addition, according to the proposed small claims procedures, a party who raises an action is obliged to provide evidence in support of his allegations. But Xiao believes it is hard for an ordinary individual to collect enough evidence, so the stipulation may intensify conflicts between involved parties.
“The law should give litigants of small claims lawsuits the right to appeal. It is a necessary judicial right for them,” he said.