Civil Public Interest Lawsuit Case of China Biodiversity Conservation and Green Development Foundation and Putian Lvmeng Coastal Wetland Research Center vs Hainan Mangrove Tourism Co., Ltd. for Environment 

 

 

 

[Case description] On May 13, 2015, China Biodiversity Conservation and Green Development Foundation and Putian Lvmeng Coastal Wetland Research Center filed a lawsuit against Hainan Mangrove Tourism Co., Ltd. to Haikou Intermediate People's Court on the ground that the Company has severely damaged the local original ecologic system and balance by building wooden plank roads in the mangrove forest natural reserve for commercial purposes, and sought a judgment from the court that Hainan Mangrove Tourism Co., Ltd. shall immediately stop all injurious acts, remove the wooden plant roads, restore the site and compensate all ecologic environment losses arising therefrom, etc.  

[Trial result] On Dec. 9, 2017, China Biodiversity Conservation and Green Development Foundation and Putian Lvmeng Coastal Wetland Research Center have reached a settlement agreement with the Company, realized its lawsuit purpose as the plaintiff and applied to Haikou Intermediate People's Court for lawsuit withdrawal. According to law, Haikou Intermediate People's Court approved the application of lawsuit withdrawal from China Biodiversity Conservation and Green Development Foundation and Putian Lvmeng Coastal Wetland Research Center. 

[Typical significance] The case is a civil Public Interest lawsuit case initiated by environmental protection and Public Interest organizations for environment. Dongzhaigang National Mangrove Forest Natural Reserve is the first of its kind established in China, and a famous scenic spot in Hainan, which attracts a large number of visitors every year, generates remarkable economic income and creates many jobs. The trial of this case has relatively huge social influence. During the case trial, the concept of protecting environment first was upheld, and the court communicated with related governmental agencies for many times while meticulously mediating the parties. By working hard, related government agencies demolished the wood plank roads in the reserve according to law, and both parties reached an accommodation. The plaintiff withdrew the lawsuit on this basis, and the case was closed with good social and legal effects.  

 

 

 

Administrative Public Interest Lawsuit Case of the Wenchang City People's Procuratorate vs Wenchang Agriculture and Rural Affairs Bureau for Marine Environment 

 

 

 

[Case description] When investigating Fengjiawan, Wenchang City, Wenchang City People's Procuratorate found a large number of nets placed against the law, and made suggestion from prosecutorial organizations before a lawsuit to Wenchang Agriculture and Rural Affairs Bureau on Apr. 25, 2018, requesting the clearance of nets with mesh smaller than the specified minimum size and punishment of all illegal fishing acts within the jurisdiction.  Though Wenchang City Agriculture and Rural Affairs Bureau carried out special clearance action for this purpose, Wenchang City People's Procuratorate still found illegally placed nets in some sea areas of Wenchang during tracking and supervision. Therefore, the Procuratorate filed a lawsuit to Haikou Maritime Court on the ground that Wenchang City Agriculture and Rural Affairs Bureau failed to fulfill all statutory obligations according to law on Jan. 9, 2019, requested confirming the illegal act of Wenchang City Agriculture and Rural Affairs Bureau to fulfill all statutory obligations of removing illegally placed nets in the sea area within its jurisdiction, and sought a judgment that Wenchang City Agriculture and Rural Affairs Bureau shall keep on fulfilling its statutory obligations in 6 months.  

[Trial result] Haikou Maritime Court took the view that the defendant Wenchang City Agriculture and Rural Affairs Bureau failed to fulfill its supervising obligation in strict accordance with law correctly during the investigation and treatment of illegally placed nets, and had wrongful or illegal acts in the treatment measures and law enforcement procedures against illegally placed nets. Consequently, illegal fishing was generally found in the sea area within its jurisdiction, fishery resources were not effectively and timely protected, and social public interests were damaged continuously.  The defendant's incomplete fulfillment of statutory obligations against the illegally placed nets in the sea area within its jurisdiction was against law. In view that there were still illegally placed nets in the sea area of the defendant's jurisdiction, the plaintiff's request that the defendant shall keep on fulfilling the statutory obligations of investigating and treating illegally placed nets had objective conditions and practical significance. Therefore, the defendant Wenchang City Agriculture and Rural Affairs Bureau was sentenced to fulfill its statutory obligations of investigating and treating illegally placed nets in the sea area within its jurisdiction for 6 months after the judgment became effective. After judgment pronouncement, no party appealed and the judgment became effective.  

[Typical significance] As a National Ecologic Civilization Pilot and a major province of ocean and fishery, Hainan shall protect the ecologic environment of the marine with the strictest justice. General Secretary Xi Jinping also sent a message to Hainan, saying Hainan shall properly handle the relationship between development and protection, and make efforts in "green growth" and "environmental protection". Economic development shall never proceed to the Terra Tragedy of resources and ecologic environment. The protection of ecologic environment shall never sacrifice economic development, but insist on equal emphasis to protection and development to achieve the coordination amongst economic social development, population, resources and environment.  Investigation and treatment of illegally placed nets play a significant role in protecting the marine fishery resources and ecologic environment, and realize the sustainable development of marine economy. In this case, as a fishery supervision department, the defendant shall continue investigating and treating illegally placed nets in the sea area within its jurisdiction, and strictly implement the guiding opinions from the Ministry of Agriculture "to persistently and further clean up and control illegal fishing appliances, discover, investigate, treat, and announce each case, and overawe each place". The defendant shall resolutely contain the spread trend of illegally placed nets and practically protect the fishery resources in the sea area within its jurisdiction. The procuratorial organs urged the fishery supervision and management department to perform environmental supervision and management duties in accordance with the law through public interest litigation, and the maritime court supervised the fishery supervision and management department to perform environmental supervision and management duties in accordance with the law through administrative judgments, thereby the law enforcement forces of marine environmental resource protection were further combined effectively.  

 

 

 

Civil Public Interest Lawsuit Case of the First Branch of People's Procuratorate of Hainan Province vs Chengmai Zhongxing Rubber Processing Factory Co., Ltd. for Environment 

 

 

 

[Case description] Since 2005, Chengmai Zhongxing Rubber Processing Factory Co., Ltd. has been carrying out rubber processing and sales without any environmental protection facility, and the wastewater produced during production was not treated but directly discharged into the ponds without any leakproof measure nearby the plant, causing pollution to the surrounding ecologic environment. On the ground that Chengmai Zhongxing Rubber Processing Factory Co., Ltd. discharged wastewater against the law, polluted environment and severely damaged the social public interests, the First Branch of People's Procuratorate of Hainan Province initiated a civil public interest lawsuit of environmental pollution to Haikou Intermediate People's Court and sought a judgment that Chengmai Zhongxing Rubber Processing Factory Co., Ltd. shall be liable for environmental damages.  

[Trial result] The polluter shall be liable for tort for the reason of damages arising from environmental pollution. Chengmai Zhongxing Rubber Processing Factory Co., Ltd. started the production and operation of the rubber processing project before the completion and acceptance of environmental protection facilities as an auxiliary part of the construction project, and directly discharged industrial wastewater which was not processed. Chengmai Zhongxing Rubber Processing Factory Co., Ltd. violated the "Three Simultaneous" system and EIA requirements by illegal production and excessive discharge of unprocessed industrial wastewater. The illegal act of Chengmai Zhongxing Rubber Processing Factory Co., Ltd. damaged the surrounding ecologic environment and constituted a tort of environmental pollution that the Company should be liable for the corresponding environmental damages. The appraisal conclusion issued by the South China Institute of Environmental Sciences, MEE can be used as the basis to determine that Chengmai Zhongxing Rubber Processing Factory Co., Ltd. shall bear the liability for environmental damage. It was then judged that Chengmai Zhongxing Rubber Processing Factory Co., Ltd. shall compensate RMB 363,395 for emergency treatment costs, RMB 337,316 for ecological environmental damage, RMB 268,000 for appraisal, and RMB 7,504.15 for expert consultation, totaling RMB 976,215.15, within 30 days from the effective date of the judgment. The payments shall be made to the financial fund account of Chengmai County Finance Bureau. After judgment pronouncement, no party appealed and the judgment of the first instance became effective. 

[Typical significance] 1. This case was the first major environmental civil public interest lawsuit case filed by the People's Procuratorate in the name of a public interest lawsuit plaintiff. It fully leveraged the functions of procuratorial organs in safeguarding the public interests of environment, and urged the environmental polluters to compensate for environment according to law in a timely manner. The case also played a judicial guiding role in protecting the public environment and residents' environmental interests. 2. Rubber industry is a characteristic and advantageous industry of Hainan based on the national strategy. Courts in Hainan shall fully leverage the trial functions to urge the strict implementation of "Three Simultaneous" in environmental protection and EIA systems in Hainan rubber industry, so that it can take on the intensive management road of energy conservation and environmental protection as a concrete embodiment of environmental resources trial serving and safeguarding the construction of Hainan Free Trade Port in our province.  

 

 

 

Case of Illegally Hunting Rare and Endangered Wild Animals by Li XXX 

 

 

 

[Case description] By the end of January 2019, the defendant Li XX went to the subcompartment No. 32 of Hainan Yinggeling Reserve Nankai Area with hacking knives and such other articles to see what the iron clamps previously placed had caught, and found a pheasant-like prey in one of the iron clamps.  After recycling the 7 of the 9 iron clamps at the site, Li XX burned out and baked the prey, and placed it into a woven bag he took to the mountain. Next day, on his way off the mountain, forest rangers including Liu XX found him with the prey and such other articles. The forest rangers required Li XX to destroy the other 2 iron clamps which were not taken away. After identification, the animal that the defendant Li XX hunted and killed was the Polyplectron bicalcaratum, a national first-level protected wild animal. 

[Trial result] The defendant Li XX committed a crime of illegally hunting rare and endangered wild animal, which was a Polyplectron bicalcaratum under national first-level protection in the National Catalogue of Key Protected Wild Animals. As the defendant Li XX was able to truthfully confess his crimes before the authority and had a good attitude, so he was punished lightly according to law. The tools for criminal purpose and the spoils of the defendant Li XX were confiscated in accordance with the law. According to the fact, nature, circumstances and extent of social harm of the defendant Li XX's crime, a judgment was made as follows: 1. The defendant Li XX was sentenced to jail for 2 years and fined RMB 2,000 based on the crime of illegally hunting rare and endangered wild animals; 2. The 5 small iron clamps, 2 medium-sized iron claps, 2 large iron clams, 1 auxiliary tool of iron clamp placement, and a hacking knife detailed were confiscated by the detaining authority; the dead body of the detained spoil the Polyplectron bicalcaratum were treated by the detaining authority according to law.  

[Typical significance] Polyplectron bicalcaratum lives in Asia, Tropic and Subtropics zones, and in China, only gray and Hainan Polyplectron bicalcaratum survive, of which, the second species is unique to China and only found in southwestern forests of Hainan Island.  Polyplectron bicalcaratum is a scarce and endangered species under national first-level protection.  Endangered wild animals are a valuable natural resource of the country. They have not only important economic values but also cultural, social and political values.  Nowadays, eating rare and endangered wild animals is a prominent problem in some areas, and that lawbreakers illegally hunt wild animals by shying away from the supervision of public security happens occasionally. Henceforth, the criminal act of illegally hunting endangered species must be seriously cracked down.  The case occurred in Hainan Yinggeling Provincial Nature Reserve, which is a hunting sanctuary. In this case, the defendant entered the hunting sanctuary and illegally used the method of placing iron clamps to hunt without obtaining a special hunting license. After catching the prey, he baked it. Whereas the defendant truthfully confessed his crime before the authority with a good attitude, and in consideration of the defendant's crime circumstances, natural and extent of social harm, the defendant was sentenced to jail for 2 years and fined. Such a judgment complied with the principle of compatibility of crime, responsibility and punishment and reflected the province's determination of protecting rare and endangered wild species and criminal policies of seriously cracking down illegal hunting of rare and endangered species.  

Case of Deforestation by Qin XX  

 

 

 

[Case description]  On Dec. 28, 2001, the defendant Qin XX entered into a land contracting agreement with Shangke Village Committee of Yangjiang Town, Qionghai City to plant areca-nut in the South Field of Herbs in Niululing Reservoir Area of Shangxi Provincial Natural Reserve. In the second half of 2002, Qin XX hired some workers to uproot existing crops, weeds, shrubs and seedlings, and plant about 20,000 areca-nut trees. The first harvest was in 2009. After planting areca-nut, Qin XX employed workers to chop trees every year as the weeds and small trees grew fast. On Mar. 18, 2015, Qin XX paid the land rent of RMB 33,540 from 2002 to 2014 to the Shangke Village Committee for the first time. In December 2017, Qin XX appointed 5 workers to cut the shrubs and saplings in the areca-nut plantation and removed all weeds using weed extractors.  After identification, 6,481 saplings were cut. It was also found that Qin XX asked his family to replant 8,700 acacia saplings and casuarina saplings in the deforested area. The survival rate of the saplings was measured to be 100% and accepted by the staff of the Forest Management Unit of Wanning City Forestry Bureau. 

On Jul. 17, 2018, the Forest Public Security Police of Wanning City went to Qin XX's home and brought him to the Qingpilin District Police Station of the Bureau after showing him the summons for investigation on the spot. 

[Trial result] The defendant was sentenced to jail for 3 years and fined RMB 10,000 for deforestation.  

[Typical significance] In this case, Qin XX cut 6,481 saplings without a license of forest harvest. According to Article 6 in the Interpretation of the Supreme People's Court on Several Issues on the Specific Application of Laws in the Trial of Criminal Cases Destroying Forest Resources, large quantity of deforestation is defined as 50 to 100m3 or 2,500 to 5,000 saplings. Therefore, Qin XX has deforested in a large quantity. According to the second paragraph of Article 345 of the Criminal Law of the People's Republic of China, anyone who deforests a large quantity of trees shall be sentenced to fixed-term imprisonment of 3 to 7 years and fined. Before the authority, Qin XX confessed his crime truthfully, and his family members replanted trees at the deforested land and restored the ecology. In consideration of the circumstance, the People's Court issued a judgment that the defendant Qin XX was sentenced to jail for 3 years and fined RMB 10,000 for deforestation to reflect the principle of punishment and education in union. 

 

Case of Environmental Pollution by Cai XX 

 

 

 

 [Case description] On Jan. 23, 2015, the defendant Cai XX established Haikou Yongxing Haoyimin Biological Safety Treatment Center (hereinafter referred to as "Haoyimin Center") as the investor and person in charge, which is mainly engaged in businesses such as meat, food and innocent treatment of animal bodies, etc. As Haoyimin Center was established, Hainan Provincial Department of Science and Technology (hereinafter referred to as "HPDST") reached an agreement with it after investigation that Haoyimin Center shall be reprehensible for the treatment of all experimental animal carcasses in the province.  From 2015 to 2017, the Center concluded the Experimental Animal Carcasses Treatment Agreement with 6 pharmaceutical companies and 1 institute of pharmacology recommended by HPDST, received and treated 7.1809t of experimental animal carcasses without the License of Hazardous Waste Management. The public prosecution agency believed that the defendant Cai XX violated national laws by illegally disposing of hazardous waste up to 7.1809, which seriously polluted the environment. He should be held criminally responsible for the crime of environmental pollution. 

[Trial result] After the first instance, the court took the view that the key to this case was "if experimental animal carcasses belong to 'hazardous waste'". Since the National Directory of Hazardous Wastes does not explicitly include the experimental animal bodies, whether the experimental animal carcasses involved are classified as "hazardous waste" can only be determined according to the identification standards and methods prescribed by the state. As the public prosecution agency stated that it was unable to conduct identification, it could not determine that the experimental animal carcasses involved were hazardous wastes; the Provincial Environmental Protection Department referred to the Department of Soils of the Ministry of Environmental Protection, which believed that the carcasses of experimental animals were not hazardous waste. Therefore, the evidence is insufficient if the experimental animal carcasses involved in the case should be classified as hazardous waste as the object of the environmental pollution crime. In summary, the public prosecutor failed to establish and support the fact clearly with sufficient evidence when accused the defendant Cai XX of environmental pollution. Cai XX was finally acquitted of the charge, and the prosecution agency didn't protest. The judgment has become legally effective already. 

[Typical significance] As a National Ecologic Civilization Pilot, Hainan shall always maintain a high pressure policy against criminal cases of environmental resources so as to safeguard the ecologic environment with the strictest judicial means, and punish criminals strictly to the extent of law to heavily and strictly crack down various environmental resource criminals. But, criminal penalty shall adhere to the basic criteria of criminal justice, i.e., "no conviction and punishment unless clearly stipulated in law".  This is an environmental pollution case of treating animal carcasses suspected to be hazardous waste. In the context of no related legal provisions that animal carcasses are hazardous waste, the court finally acquitted the defendant because of insufficient evidence, practically protected the innocent from criminal punishment, embodied the legal principle of legally prescribed punishment for a crime and no punishment in doubtful cases, and demonstrated the judicial justice of courts so that the public could have a sense of fairness and justice in every judicial case.  

 

 

 

Case of Illegal Mining by Chen X 

 

 

 

[Case description] On Nov. 17, 2017, Chen X entered into an agreement of cleaning and rebuilding Shantang Reservior in Nancun Village with the Dalao Village Group of the Villager's Committee of Feiba Village, Yaxing Town, Danzhou City.  From then on to Feb. 11, 2018, Chen X hired workers and illegally exploited granite weathering type building placer of 3,419m3 (value: RMB 153,099.5) with excavators, forklifts and other equipment against the Law of Mineral Resources and without a mining license. During that period, Danzhou Bureau of Land and Resources served two notices to order Chen X to stop the illegal act immediately. The economic gains by selling illegally exploited minerals were RMB 111,905.5. After the crime, Chen X received investigation actively and confessed his fact of illegal mining. 

[Trial result] The court took the view that Chen X illegally exploited minerals valuing RMB 153,099.5 against the Law of Mineral Resources and without a mining license. It's a serious case. Chen X proactively appeared before the authority and confessed his crime, which constituted a voluntary surrender.  The proceeds of RMB 111,905.5 by selling illegally exploited minerals were illegal gains. Judgment: 1. Chen X was sentenced to jail for 1 year and fined RMB 50,000 for the crime of illegal mining; 2. The illegal gains of RMB 111,905.55 were confiscated according to law and handed over to the National Treasury.  A notebook recording sand mining and sales, and a VIVO X9 mobile phone transferred with the case were confiscated according to law and handed over to the National Treasury.  

[Typical significance] Mineral resources refer to solid, liquid or gaseous natural resources formed by geologic processes with value in use. The formation of mineral resources requires geological processes of millions or even billions of years, and mineral resources are non-renewable in a relatively long period of time. Along with the rapid development of national economy construction, our demands on mineral resources are increasing, and the price of mineral resources has been rising straightly. A large number of criminals risked danger in desperation for huge profits and never hesitated to defy the law. As mineral resources naturally occur in the crust or on the surface, illegal mining activities also severely damage the surrounding environmental resources of the mining area and cause irreparable losses to the natural environment on which humans depend. In this case, the criminal committed a serious crime and surrendered himself voluntarily. The judgment adhered to the criminal justice policy of both leniency and strictness when imposing penalties, fined the criminals, recovered their illegal proceeds and deprived of the illegal economic interests according to law. The judgment demonstrated that courts in Hainan had implemented the spirit of the important speech by General Secretary Xi Jinping on Apr. 13, and the requirements of document ZF [2018] No. 12. The courts adhered to the concept of "Hainan implementing the National Strategy, Contribution to Hainan Development", and adopted the most strict ecologic environment protection system to build a national ecologic civilization pilot, and strived to promote the construction of Hainan Free Trade Zone (Port).  

 

Case of Illegal Mining by Wei XX, Xiao XX, Pan X and Fang XX 

 

 

 

[Case description] In the middle of July 2018, the defendant Wei XX mined sea sand in the sea areas nearby the southwestern shoal of Hainan without a license to use the sea sand mining sea area and a mining license. Planned and instructed by the defendant Wei XX, the defendant Xiao XX drove the sea sand ship of "Xinyang 9977" and served as the captain to mine sand. The defendant Pan X was responsible for liaison, coordination and sea sand receipt. The defendant Fang XX was responsible for supervision, coordination and sea sand quality inspection.  The involved sea sand resource reserves totaled 10,843.52m3 and was auctioned for a total price of RMB 390,366.72. 

[Trial result] After hearing, the court took the view that the defendant Wei XX had seriously violated the law and committed the crime of illegal mining by dredging sea sand without a license to use the sea sand mining sea area and a mining license; the defendant Xiao XX participated in dredging, and played a secondary role in the crime as the accessory criminal, and shall be lightly punished; the defendant Pan X participated in the secondary sand dredging, and played a role of coordination and receipt in such a process, and a secondary role in the crime as the accessory criminal, and shall be lightly punished; the defendant Fang XX was involved in the secondary sand dredging, played a secondary role in the crime as the accessory criminal, and shall be lightly punished. In summary, the legal judgment is as follows: 1. The defendant Wei XX committed the crime of illegal mining and was sentenced to one year's imprisonment and a fine of RMB 10,000.  2. The defendant Xiao XX committed the crime of illegal mining and was sentenced to nine-month imprisonment and one-year probation, and fined RMB 8,000. 3. The defendant Pan XX committed the crime of illegal mining and was sentenced to nine-month imprisonment and one-year probation, and fined RMB 8,000. 4. The defendant Fang XX committed the crime of illegal mining and was sentenced to six-month imprisonment and one-year probation, and fined RMB 5,000. 5. The detained sand ship "Xinyang 9977" was returned to the ship owner; the detained sea sand of about 8000t (yellow sandy particle) and the sea sand of about 10,000t on the ship "Xinyuanhe" (yellow particle) were auctioned for a total price of RMB 390366.72, which was confiscated and handover the National Treasury with the two mobile phones used in the crime (1 Huawei mobile phone and 1 OPPO mobile phone).  

[Typical significance] The case is related to illegal sea sand mining, which widely distributes in China as the second marine mineral resource only next to petroleum and natural gas, and is extensively used in city building. Since sea sand contains chloride ions, if this component exceeds the standard, it will have a serious corrosive effect on steel bars when used in engineering construction after concrete mixing. The sea sand must be desalinated before it can be used in construction. The illegal mining of sea sand not only erodes the coastline and destroys the marine ecological environment, but also causes the risk of unqualified sea sand flowing into the construction field, potentially threatening the safety of the construction industry. The people's court's punishment for illegal mining of sea sand demonstrates its strong determination to crack down on environmental resource crimes. Severely cracking down on sea sand crimes can effectively curb the momentum of illegal sand mining at sea, maintain the order of marine development and utilization, safeguard the safety of sand for construction, and create a good environment for accelerating the construction of the Free Trade Zone (Port) and the National Ecologic Civilization Pilot.  

 

 

 

Case of Hainan Sangde Water Co., Ltd. vs Danzhou Bureau of Ecological and Environmental Protection, Hainan Province for Dispute over Administrative Penalty of Environmental Protection 

 

 

 

 [Case description] On Jun. 5, 2013, Hainan Provincial Environmental Monitoring Center Station issued a monitoring report (QHJZ [2013] No. 153) (hereinafter referred to as the No. 153 Monitoring Report). According to the Monitoring Report, Danzhou Bureau of Ecological and Environmental Protection (hereinafter referred to as Sangde Water Company) suspected that Hainan Sangde Water Co., Ltd. discharged water pollutants illegally and proposed an administrative punishment on Apr. 16, 2014.  Sangde Water Company didn't apply for statement, defending and hearing. On Jun. 16 of the same year, Danzhou Bureau of Ecological and Environmental Protection served a Written Decision of Administrative Penalty (BSDTHZFJZ [2014] No. 47) to Sangde Water Company for a fine of RMB 177,719 at 2 times of the sewage charge payable in May 2013.  After reconsideration, the People's Government of Danzhou City supported the No. 47 decision.  Refusing to obey, Sangde Water Company filed a lawsuit to a court with its request of revoking the No. 47 decision.  

[Trial result] After the first instance, the People's Court of Danzhou City, Hainan Province took the view that as the administrative competent department of environmental protection in Danzhou City, Danzhou Bureau of Ecological and Environmental Protect reserves the right to issue administrative penalty against illegal acts of discharging water pollutants within its jurisdiction.  According to Article 34 of the "Environmental Administrative Punishment Measures", sampling is a necessary procedure for monitoring in this case. However, Danzhou Bureau of Ecological and Environmental Protection failed to provide relevant evidence such as sampling records or sampling process, and could not prove that its sampling procedures were legal. Consequently, the authenticity of the samples submitted for inspection could not be established, which directly affected the authenticity of the monitoring results. Therefore, Danzhou Bureau of Ecological and Environmental Protection did not collect conclusive evidence to confirm the authenticity of the sample source. Instead, the Bureau only relied on the “No. 153 Monitoring Report” issued by Hainan Provincial Environmental Monitoring Center Station to determine that the Sangde Water Company discharged wastewater in excess of the standard. The main evidence was insufficient. Meanwhile, Danzhou Bureau of Ecological and Environmental Protection also violated the law of procedures by imposing a 2 times penalty on Sangde Water Company on Jun. 16, 2014 for its discharge in excess of the standard on Jan. 14, 2013 and May 22, 2013. The No. 47 decision only involved a fine against Sangde Water Company instead of requesting it to correct the illegal act within a time limit. The administrative penalty was obviously improper.  The court of first instance ruled to revoke the No. 4 decision, and Danzhou Bureau of Ecological and Environmental Protection shall bear the litigation costs. 

In the second instance, the Second Intermediate People's Court of Hainan Province held that the legality of the No. 153 Monitoring Report was the basis for reviewing whether the facts of the environmental protection administrative penalty were clearly identified in this case. Since the sampling procedures of No. 153 Monitoring Report violated the law, the No. 153 Monitoring Report could not be used as the main evidence to support the fact that Sangde Water Company violated law of environment.  Except for the No. 153 Monitoring Report, Danzhou Bureau of Ecological and Environmental Protection didn't carry out any related investigation, and violated the provision of separated investigation and treatment. The procedures were illegal.  The No. 47 decision had insufficient main evidence to support the facts, and the law was wrongly applied. The court of second instance rejected the appeal and upheld the original judgment. 

[Typical significance] This case involves a dispute over environmental protection administrative penalty, and the checkup and cognizance of evidence based on which the environmental protection administrative penalty was made, and is typical and guiding.  In recent years, administrative law enforcement departments of environmental protection at all levels have enhanced the strength of administrative law enforcement against illegal cases of ecological environment, and effectively curbed the basic trend of continuous environmental degradation.  However, judging from the situation of environmental administrative punishment cases handled by the courts, environmental protection administrative law enforcement has problems such as irregular law enforcement, "emphasizing results rather than procedures", etc. to varying degrees. During environmental monitoring, environmental protection law enforcement authorities shall pay attention to the validity of monitoring procedures, especially in environmental protection penalty cases related to water pollution. The compliance of the sampling procedures of the tested samples will directly affect the sample test results.  Therefore, the Environmental Administrative Punishment Measures specially provide for the procedures of site investigation and sampling by requiring sampling records or recording the sampling process into the site inspection (survey) notes. Sampling shall be evidenced by photos, videos or other means.  

This case was listed in the Top 10 Typical Criminal, Civil and Administrative Cases of Environmental Resources of the People's Court. It is explicitly stipulated that a monitoring report shall not be separately considered as the main evidence of the punished party's illegal environmental acts if the legality of the sampling procedures can't be proved. The judgment in this case embodies the supervision of the people’s courts over the administrative enforcement of environmental protection, and plays a positive role in promoting environmental protection administrative departments to standardize the exercise of administrative punishment powers and motivating administration according to law. 

 

 

 

Case of Danzhou Yonghang Stainless Steel Co., Ltd. vs The People's Government of Danzhou City for Non-compliance with Administrative Agreements and Administrative Compensation 

 

[Case description] In 2005, the People's Government of Danzhou City (hereinafter referred to as Danzhou Government) concluded a contract with Danzhou Yonghang Stainless Steel Co., Ltd. (hereinafter referred to as Yonghang Company) for the investment and construction of a 500,000t/y stainless steel project in Mutang Economic Development Zone of Danzhou City. The two parties agreed that the government shall accomplish the relocation and resettlement of residents in Dajing Village before the Spring Festival of 2006, and the land acquisition and resettlement of Yangjia Village before Sep. 31, 2006. As the Contract was concluded, Yonghang Company started trial production in May 2007.  Since the project involved seriously polluted environment, failed to implement the Three Simultaneous System in terms of environmental protection, to pass the as-built acceptance of environmental protection and to resume production via technical innovation of its backward productivity and production processes, the related provincial and municipal administrative authorities repeated ordered the project to stop trial production and commissioning, and imposed administrative penalty accordingly from 2008 to 2010. After that, Yonghang Company stopped trial production and commissioning, and was shut down. As a result, most of the steelmaking and production facilities were idle, eroded or damaged. Yonghang Company sued the Second Intermediate People's Court of Hainan for a dispute over the performance of an administrative agreement, requesting an order that the Danzhou Municipal Government shall continue to perform the relocation and resettlement as agreed in the contract and compensate the Company for direct economic losses of more than RMB 1.15 billion. 

[Trial result] The court of the first instance believed that, as the contract was entered into by and between Danzhou Municipal Government and Yonghang Company, both parties had basically discharged main obligations therein. However, the Project truly had serious problems in environmental pollution and was administratively punished, ordered to stop production and to stop trial production and make corrections by the Provincial Department of State Land and Resources. The Project involved failed to pass the environmental protection inspection after an extension while Yonghang Company failed to resume production by technical innovation of its backward productivity and production process.  It can be see that the root cause to the suspension, failure of formal production and equipment idling in the involved project of Yonghang Company was due to environmental protection problems rather than the government's non-fulfillment of relocation and settlement obligations in the Contract.  Based on this, the court of first instance judged to reject Yonghang Company’s litigation request. Yonghang Company refused to accept the first instance judgment and appealed to the Hainan High People’s Court. The court of second instance rejected the appeal and upheld the original judgment. 

[Typical significance] The dispute arising from environmental protection is an important issue to be dealt with during the economic development mode transformation in China.  Environmental protection is a precondition and base to safeguard the public health, promote ecological civilization construction and sustainable development of economy and society.  On the Seventh Party Congress of Hainan Province, it was pointed out that a good ecological environment is the strongest strength and the most solid foundation of Hainan’s development. It is necessary to transform ecological advantages into development advantages to achieve a win-win situation for protection and development. Protecting the ecological environment we depend on is an important guarantee of governments at all levels to thoroughly implement the instructions of "lucid waters and lush mountains are invaluable assets" from General Secretary Xi Jinping and achieve the sustainable development of economy and society, but also the statutory and social responsibilities all sewage discharge entities, including enterprises, must assume.  In this case, the People's Court rejected the appeal from the plaintiff according to related laws and regulations on the fact ground that the involved enterprise stopped production because of environmental protection. It reflected the fulfillment of statutory obligations in administrative trial according to law, supported the law-based administration by administrative authorities, and thoroughly embodied the instructions of "lucid waters and lush mountains are invaluable assets" from General Secretary Xi Jinping, providing powerful judicial protection to the sustainable development of economy and society in Hainan. This case has important practical significance and long-term modeling and leading effects.