China is considering authorizing procuratorates to bring public interest lawsuits against foreign organizations and individuals whose unlawful acts harm the country”s national interests or social public interests, according to a revised draft law under review by the top legislature.
The new provision, included in the second draft of the law on procuratorial public interest litigation, is intended to enrich China’s legal tools for protecting its interests in foreign-related cases.
The draft is being reviewed at the four-day session of the Standing Committee of the 14th National People’s Congress, which concludes on Friday.
In accordance with the proposed provision, procuratorates can initiate public interest litigation over unlawful acts committed by foreign organizations or individuals that infringe upon China’s national interests or social public interests.
The NPC Constitution and Law Committee submitted a report on revisions to the draft, covering the scope of cases, oversight mechanisms, court jurisdiction, pre-litigation procedures and trial rules.
The committee proposed distinguishing more clearly between administrative and civil public interest litigation and separately listing areas where judicial practice is relatively mature.
It also recommended expanding the scope of both administrative and civil public interest litigation to cover the protection of rights and interests of groups specified by law, including older people and people with disabilities, as well as the promotion of ethnic unity and progress. Civil public interest litigation would also cover conduct by employers and other entities that infringe upon the lawful rights and interests of large numbers of workers.
Procuratorial public interest litigation allows procuratorates to pursue cases involving damage to national or social public interests. Administrative public interest litigation generally concerns failures by administrative authorities to perform their statutory duties, while civil cases commonly target unlawful conduct by organizations or individuals.
To ensure that such litigation is conducted lawfully and in an orderly manner, the committee proposed adding provisions authorizing people’s congresses and their standing committees at all levels to supervise procuratorial public interest litigation.
Procuratorates and courts handling such cases would also be required to accept public oversight and protect people’s rights to information, participation and supervision in accordance with the law.
The revised draft further clarifies jurisdiction. Unless otherwise stipulated by law, first-instance administrative and civil public interest lawsuits filed by procuratorates would be heard by primary-level people’s courts. The issue of centralized jurisdiction over civil public interest litigation would not be addressed in the legislation.
The committee also proposed refining the procedures that must be completed before an administrative public interest lawsuit is filed. Before bringing such a case, a procuratorate would be required to issue a procuratorial recommendation on public interest litigation to the administrative authority concerned. The recommendation would specify the identified problems and the required corrective action.
Procuratorates would also be required to communicate with administrative authorities about the relevant issues before issuing a recommendation. Provisions governing the authorities’ correction period and the time limits for prosecutorial review and filing a lawsuit would also be improved.
These procedures are intended to encourage administrative authorities to correct problems and protect public interests before litigation becomes necessary.
The draft also improves trial procedures and aligns them more closely with the Civil Procedure Law and the Administrative Procedure Law. It specifies the types of claims that procuratorates can make in administrative and civil public interest lawsuits. Mediation in civil public interest litigation must follow the principles of legality.
For appeals and protests in public interest litigation, courts of second instance would follow the relevant provisions of the Civil Procedure Law or the Administrative Procedure Law unless the proposed legislation provides otherwise.
yangzekun@chinadaily.com.cn
