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I. The Necessity of Widely Applying Injunction Preservation Measures and Prior Enforcement Measures in Environmental Public Interest Litigation

The purpose of environmental public interest litigation is to maximize the protection and repair of environmental public interest, and if you want to minimize the pollution or damage to the environment, earlier and faster discovery and intervention is very important. Because the vast majority of ecological and environmental pollution is spreading at an alarming rate, earlier intervention can reduce the continued expansion of the damage and timely completion of the restoration. Some studies have shown that for sewage treatment, implementation of treatment measures within six months after pollution occurs can reduce the concentration of pollutants in the water body by 60%, whereas a delay of up to 12 months for treatment results in a reduction of pollutant concentration of only 40%. The same is true for exhaust emission control, chemical spill cleanup, and soil contamination remediation, where earlier treatment results in better remediation.

And environmental pollution remediation, most of the remediation work will have a more suitable time to carry out, but also some of the season has more stringent requirements. For example, some water pollution remediation can achieve better remediation effect in late summer to fall, because the high water temperature can accelerate the metabolism of microorganisms and the degradation of pollutants; wetland remediation is more suitable in spring, because the water level of the wetland in the spring is higher, the plant growth is rapid, the ecosystem recovery ability is strong, and the wetland function can be stabilized and restored faster. Therefore, when to carry out treatment and restoration will have a great impact on the effect of restoration. Once the appropriate season is missed, the optimal effect may not be achieved, and more resources will need to be invested in subsequent restoration, resulting in a waste of resources.

Not only that, many environmental public interest litigation due to the complexity of the case, evidence collection difficulties and other reasons lead to a long trial period. Waiting for the judgment to come into effect is likely to lead to further expansion of losses.

Therefore, in order to better protect the environmental public interest, we should make full use of litigation aids and safeguards, such as the injunction preservation measures and the prior execution system. Both the preservation measures and the prior enforcement system are mechanisms set up in civil litigation to avoid or minimize the losses of the injured party, which can apply for immediate enforcement against the obligor without based on the effective judgment. Such a mechanism can just meet the need for time urgency in environmental protection and restoration.

Second, the relevant laws and judicial interpretations

In the environmental public welfare litigation actively apply for injunction preservation measures or prior execution measures have sufficient legal basis.

Article 103 of the Civil Procedure Law provides that “the people's court may, on the application of the opposing party, decide to preserve its property, order it to perform certain acts, or prohibit it from performing certain acts in a case in which it may be difficult to execute the judgment or cause other damages to the party concerned because of the acts of one of the parties or for other reasons; and in the absence of any application by the party concerned, the people's court may also, if necessary, decide to impose an injunction to preserve its property, or prohibit it from performing certain acts. People's Court may also rule on preservation measures when necessary.”

Article 109 of the Civil Procedure Law provides that “the people's court may, on the application of the party concerned, rule that the following cases be executed first”, the third item of which reads, “where the emergency situation requires that the case be executed first”.

Article 170 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China lists the circumstances of urgency as stipulated in the third item of Article 109 of the Civil Procedure Law, of which the first and second items are: “the need to immediately stop the infringement and remove the obstruction” and “the need to immediately stop an act”. to stop an act immediately”.

Article 13 of the Opinions of the Supreme People's Court on Regulating and Strengthening the Handling of Pre-litigation Preservation Cases stipulates the factors that the people's court shall take into account when reviewing an application for pre-litigation behavioral preservation, of which the fourth item reads: “the possible impact of the adoption of pre-litigation behavioral preservation measures on the interests of the State and the public interests of society”.

Article 1 of the Provisions of the Supreme People's Court on the Application of Injunctive Preservation Measures in Ecological and Environmental Infringement Cases stipulates the circumstances under which injunctive preservation measures shall be applied in ecological and environmental infringement cases that should be accepted by the court: “The applicant takes the position that the respondent is committing or is about to commit an act of polluting the environment or destroying the ecology, and that failure to stop it in a timely manner will result in irreparable damage to the applicant's legitimate rights and interests or the ecological environment. The applicant, on the grounds that the respondent is committing or is about to commit acts of pollution of the environment or destruction of the ecology, and that failure to stop such acts in time will cause the applicant's lawful rights and interests or the ecological environment to suffer irreparable damage, in accordance with the provisions of Article 100 and Article 101 of the Civil Procedure Law, applies to the people's court for a restraining order for conservatory measures, and orders the respondent to stop certain acts immediately, the people's court shall accept the application.”　Article 2, on the other hand, clarifies the scope of the subject of this right: “Natural persons, legal persons or unincorporated organizations that have suffered damage due to pollution of the environment or ecological damage, as well as ‘organs prescribed by the State or organizations prescribed by the law’ as stipulated in Articles 1,234 and 1,235 of the Civil Code , may apply to the People's Court for an injunction to be made.”

III. Relevant Cases

The Supreme People's Court's casebook now contains one guiding case and one reference case on preservation measures or prior enforcement in civil public interest litigation:

1. Supreme People's Court Guiding Case No. 209: Suichang County People's Procuratorate of Zhejiang Province v. Ye Jicheng Civil Public Interest Litigation for Ecological Damage

The basic facts of the case are that in early November 2018, the defendant Ye Jicheng hired others to clean up dead pine trees on a mountain field belonging to the village of Longtan behind the village of Miaogao Street in Suichang County, Zhejiang Province, during which he indiscriminately felled 89 live pine trees. After identification, Ye Jicheng abusive logging of standing timber volume of 22.9964 cubic meters, equivalent volume of 13.798 cubic meters, and the case of the mountain belongs to the national public welfare forests of the third level. According to the restoration opinion issued by forestry experts, Ye Jicheng should replant 1,075 containerized seedlings of broad-leaved trees, such as 2- to 3-year old woodhorn and maple, in the mountain field in question. On March 27, 2020, the procuratorate filed an environmental civil public interest litigation. As the spring greening and afforestation work in Suichang County was about to end, the public interest litigation prosecutor filed a pre-execution application at the same time as the lawsuit, requesting Ye Jicheng to complete replanting work in situ according to the aforementioned expert restoration opinions. Later, due to the planting of broad-leaved trees such as muhu, maple and other time nodes have passed, it is difficult to purchase saplings, the forestry experts to re-restoration assessment, determined that according to the case of the value of the damage to the trees and replanting costs 9,658.4 yuan accounted for a total of 1288 replanting of 1 to 2 years old cedar seedlings. Accordingly, on April 2, 2020, the Procuratorate changed the claim and the application for prior enforcement, requiring Ye Jicheng to replant according to the reissued restoration opinion.

The main points of the decision in this case are: the core concept of ecological restorative justice is to repair the damaged ecological environment in time and restore the ecological function. Ecological environment restoration with timeliness, seasonality, urgency, not immediately repair will lead to ecological environment damage expansion, belongs to the “People's Republic of China civil procedure law” article 109, paragraph 3, “due to the urgent need for prior execution” situation, the people's court may rule in accordance with the law prior to execution.

2. Reference Case of the Supreme People's Court: Jinan Municipal People's Procuratorate of Shandong Province v. Jinan Tumor Hospital Co.

The basic facts of the case were that a certain people's hospital in Jinan City (hereinafter referred to as a certain people's hospital) cooperated with Yimou Group Ltd. to operate a 1*6 hospital in Jinan City. On this basis, the establishment of Jinan Cancer Hospital (now Jinan Cancer Hospital Co., Ltd., hereinafter referred to as Jinan Cancer Hospital). December 17, 2008, Jinan Cancer Hospital introduced a set of gamma knife equipment from Swedish medical so-and-so company, which is the legal user of the radioactive source in question. 2013, the People's Liberation Army (PLA) People's Liberation Army (PLA) General Hospital of a military region (now PLA), the People's Liberation Army (PLA) Military Hospital (hereinafter referred to as the military hospital), the environmental pollution of the civil public interest litigation. In 2013, a People's Hospital and a military general hospital of a military region of the PLA (now a military hospital of the PLA) entered into a Medical Equipment Lease Agreement, agreeing to lease the gamma knife equipment to a military hospital, and both parties would draw revenue based on the gross revenue of the project. As a result, a people's hospital and a military hospital became the actual users of the radioactive source in question. in July 2016, the medical equipment rental agreement was terminated, and the radioactive source in question has been left unused at a military hospital, posing a potentially serious danger to the public safety of the environment.

On March 12, 2021, the Ecological Environment Department of Shandong Province designated Beijing Nuclear Moyuan Science and Technology Development Co. to dispose of the radioactive source in question on behalf of the company, with a certain tumor hospital in Jinan bearing the disposal costs. A people's hospital, a military hospital and a tumor hospital in Jinan disputed over the responsibility for disposal, and the administrative processing was blocked, resulting in the radioactive source has not been disposed of, posing a serious risk of radioactive contamination. The Jinan Municipal People's Procuratorate of Shandong Province (hereinafter referred to as the Jinan Municipal Procuratorate) filed this lawsuit, requesting that Jinan Cancer Hospital, a people's hospital and a military hospital be ordered to bear the cost of disposing of the radioactive source of 2.9 million yuan, and that Jinan Cancer Hospital perform the obligation of assisting in the disposal procedures. In order to prevent improper disposal of radioactive sources and pollution, upon the application of Jinan Procuratorate, Jinan Railway Transportation Intermediate People's Court made a civil ruling and injunction (2022) Lu 71 Minchu No. 64 in accordance with the law on August 10, 2022, ordering that a tumor hospital in Jinan, a people's hospital and a military hospital shall not dispose of the radioactive sources without the permission of the court or ecological environment competent authority, from the date of entry into force of the ruling to the date of the lifting of the ruling. From the effective date of the ruling to the date of its lifting, the hospital and the military hospital were ordered not to dispose of the gamma knife medical equipment and Co-60 radioactive sources without the permission of the court or the competent ecological and environmental authorities.

In the second instance, the Jinan Municipal Procuratorate applied for the prior enforcement of 2.9 million yuan in respect of a tumor hospital, a people's hospital and a military hospital in Jinan for the elimination of the hazardous costs of the radioactive sources involved in the case. The Shandong Higher People's Court made a civil ruling on March 13, 2023 (2023) Lu Minzhi No. 143, granting the prior execution of 2.9 million yuan for eliminating the dangerous costs of radioactive sources to a tumor hospital, a people's hospital and a military hospital in Jinan. on May 9, 2023, the Jinan Railway Transportation Intermediate People's Court executed the 2.9 million yuan of the people's hospital in accordance with the law. on July 10, 2023, under the supervision of the relevant departments and units, the people's hospital was authorized to dispose of the radioactive sources by a qualified disposal authority. Under the supervision of the relevant departments and units, Beijing Nuclear Moyuan Science and Technology Development Co., Ltd, which has the qualification of disposal, moved the radioactive source in question away from a military hospital, and the risk of radioactive contamination was eliminated.

One of the main points of the decision of this case is: infringement, although it does not cause real damage, but the risk of damage to environmental public safety, the state organs or organizations prescribed by law can be preventive environmental pollution civil public interest litigation. The people's court may take injunctive preservation measures to give relief, and timely stop the occurrence of damage or continue to expand. The people's court may rule on prior enforcement in cases of serious danger to environmental public safety.

Special statement:

This article by JAVY Law Firm lawyers original, only on behalf of the author's own views, shall not be regarded as JAVY Law Firm or its lawyers issued formal legal advice or recommendations. If you need to reproduce or quote any of the content of this article, please specify the source.