On Private Person’s Plaintiff Qualification In Environmental Public Welfare Litigation

In China, Environmental public welfare lawsuits have been brought to litigation since2007. In2011, the Amendment of Civil Procedural Law (draft) encompassed public welfare suits for the first time in which "relevant organs and social organizations" can be plaintiffs. This is a long-expected event both in law circle and environmental protection. However, the draft fails to explain in detail how to bring an environmental public welfare suit and it’s conservative about the plaintiff qualification. This thesis will discuss the qui tam action in Britain and USA and go on to suggest Chinese civil procedural law include private persons as plaintiff and prove the actual and theoretical possibilities of doing so and finally design the details of this new kind of suit.Qui tam actions have roots reaching back to thirteenth century Britain, where an informant who uncovered evidence of illegality was awarded a share of the penalties paid by the wrongdoer, while the Government received the remainder. In formative stage of English law, it was devised to expand the jurisdiction of royal courts and improve the execution of penal statutes. But it was abused throughout the history when British government’s attitude towards it swung between affirmative and negative. In1951, it was finally abolished in Britain. Meanwhile, qui tam action was brought to America with England colonies and is still exerting an important influence on American society.The present-day qui tam action in America was originated from1863False Claim Act, a law passed during the Civil War as a means of combating the fraudulent actions of private suppliers in filling military procurement orders. According to the law, any private citizen in control of evidence of illegality could bring a suit on behalf of US government against the wrongdoer for remedy and get a portion of the recovered money as rewards. Qui tam action under FCA has gone through four modifications to become relatively complete. The current qui tam action is regulated as follows.1. File the complaint before bringing a suit. Before bringing a lawsuit, informer must file their complaints to Government for it to decide whether this action is worth intervening or not.2. Government’s control in the proceeding. If Government proceeds with the action, the suit will be led by it rather than informer and informer has obligation to obey. For instances, Government can dismiss the action or settle the action with the defendant notwithstanding informer’s objection, Government can even suggest the court to impose limitations on informer’s participation.3. Award to qui tam plaintiff. If informer prevails in the action, they can receive a portion of proceeds of the action or settlement of the claim and the exact percentage is different depending on whether Government intervenes or not. However, if informer brings a suit without Government’s intervening and they lose it, they might be ordered to pay for defendant’s reasonable attorneys’ fees and expenses4. Public disclosure. In order to prevent Government employees from using information they learn of in the course of performing official duties to bring qui tam actions to benefit themselves,"public disclosure" provision was promulgated to forbid informers bringing a suit upon the information already in possession of Government, unless the suit is brought by the Attorney General or the person bringing the action is an original source of the information.5. Statute of limitation and calculation of remedy,(omitted here) There are criticisms against qui tam action in American contemporary law circle which basically focus on the following three aspects. First is the constitutionality of qui tam action, a controversial issue; second is interest conflict between private informers and public welfare; and last is the negative effect in practice. A contrast of English and American qui tam actions shows that America applies it in commercial field where large enterprises like government suppliers are mostly regulated while Britain uses it to administer alcohol retailers whose capacity of action is average. And in America, Government has much control over private informers in the suit but in Britain informers receive barely any constraints from government. These are exact reasons why qui tam action evolves into different endings in Britain and America.When it comes to China, our environmental public welfare lawsuit is confronted with six practical problems:private citizen’s incapacity of action, failure in openness of government, government’s preference of economic development to environmental protection, people’s less dependency on rural environment, social acquaintance and private deals, a lack of litigation enthusiasm. The above factors constitute practical basis of introducing qui tam action to China. If private persons are permitted as plaintiffs in environmental public welfare lawsuits and American qui tam action adopted to regulate private plaintiffs, citizens will be incited to supplement government’s enforcement of law to stop environmental pollution.Apart from practical needs,"direct interest", the traditional standing theory should be considered in order to include private persons into environmental public welfare suits. This thesis points out that first of all, Environmental Protection Law and Amendment of Civil Procedural Law (draft) have already made breakthrough in this area. In addition to that, environmental interest is a kind of public interest which will be in a dilemma that no one is a qualified plaintiff if we stick to "direct interest" standing theory. And finally, the risk of utilization can be eased by legal bulwark.The detailed regulations of private person bringing environmental public welfare lawsuits can be designed to include following systems:the co-operation of procuratorial organ and private person, the report procedure in American qui tam action; government’s leading role in suits; public disclosure rule and reward for private person. In calculating the reward, this thesis suggests that the reward should be calculated according to the pollution until the day when the informer could bring a suit to avoid a delay in suing just for more serious pollution and higher reward correspondingly. As to statute of limitation, this thesis holds that it should be regulated differently depending on whether procuratorial organ intervene or not. If the suit is independently brought by an informer, the statute of limitation should be short to avoid informers from doing private deals. While in the case of procuratorial organ brings the suit, there should be a longer statute of limitation or even no limitation.