Case of incomplete performance of duties by Fengxiang Branch of Environmental Protection Bureau of Baoji City, Shaanxi Province
(Inspection No. 49)
【Key words】
Administrative public interest litigation Environmental protection Full performance of duties
【gist】
While performing their duties of environmental protection supervision, administrative organs, although they have performed their duties, have not fully used administrative supervision methods to stop illegal acts in accordance with the law, and the procuratorial organs have not achieved the purpose of urging the administrative organs to perform their duties in accordance with the law in the pre-litigation procedures, they shall report to the people The court filed an administrative public interest lawsuit.
[Basic case]
In May 2014, Shaanxi Evergreen Energy Chemical Co., Ltd. (hereinafter referred to as Evergreen Energy Chemical) completed the project with an annual output of 600,000 tons of methanol, and was approved by the Environmental Protection Department of Shaanxi Province and put into trial production until December 31, 2014. On November 24, 2014, Shaanxi Province issued the local standard of "Emission Limits of Air Pollutants in Key Industries in Guanzhong Region". The emission limit of particulate matter from coal-fired boilers is 20mg/m³, which will be implemented on January 1, 2015. During the trial production of Evergreen Energy and Chemical, the air pollutant emission value of coal-fired boilers was basically above the local standard 20mg/m³ and the national standard below 50mg/m³.
On January 1, 2015, Evergreen Energy and Chemical did not stop production after the expiration of the trial production period, and the particle emission value of coal-fired boilers continued to be above 20mg/m³ and below 50mg/m³.
On July 7, 2015, the Fengxiang Branch of the Environmental Protection Bureau of Baoji City, Shaanxi Province (hereinafter referred to as Fengxiang Branch) issued the "Notice of Correction of Environmental Violations within a Time Limit" to Evergreen Energy, ordering it to correct the environmental violations of methanol production within a time limit, otherwise it will Impose high penalty. Evergreen Energy did not make rectifications in place, and Fengxiang Branch did not issue high-limit punishments. On November 18, 2015, Fengxiang Branch issued an "Administrative Penalty Decision" to Evergreen Energy, which limited it to rectification within one month and imposed a fine of 50,000 yuan. However, the company has not stopped the production of methanol projects, and the problem of excessive particulate emissions has not been effectively resolved, causing pollution to the surrounding atmosphere.
[Pre-litigation procedures]
In late November 2015, the People's Procuratorate of Baoji City, Shaanxi Province discovered that the Fengxiang branch might have failed to perform its duties during the case, and therefore designated the People's Procuratorate of Fengxiang County to conduct an investigation. The People’s Procuratorate of Fengxiang County found that: Evergreen Energy Chemical was overdue for trial production and the particulate matter was discharged in excess of the standard. Although Fengxiang Branch imposed administrative penalties on Evergreen Energy, it failed to fully perform its duties in accordance with the law. On December 3, 2015, the People's Procuratorate of Fengxiang County issued a Procuratorial Recommendation to Fengxiang Branch, suggesting that it perform its duties in accordance with the law and urge Evergreen Energy to launch pollution control and emission reduction equipment to ensure that environmental protection meets the standards.
On January 4, 2016, the Fengxiang branch replied in writing to the People’s Procuratorate of Fengxiang County, stating that on December 24, 2015, the “Decision on Ordering Production Restriction” was issued to Evergreen Energy and the company was ordered to restrict production. On December 30, 2015, the "Pollutant Discharge Verification and Pollutant Discharge Fee Payment Decision" was issued, which added a pollutant fee to Evergreen Energy Chemical's excessive particulate emissions from October to December 2015.
In response to the Fengxiang branch’s reply, the People’s Procuratorate of Fengxiang County further investigated: After Fengxiang branch made a decision to restrict production and impose additional pollution charges, although Evergreen Energy Limited restricted production as required, its pollution control and emission reduction equipment construction project did not After being officially put into use, particulate matter emissions still exceed the limit.
【Proceedings】
In view of the fact that the procuratorial recommendations did not achieve the desired effect, on May 11, 2016, the Fengxiang County People's Procuratorate filed an administrative public interest lawsuit with the Fengxiang County People's Court. After accepting the case, the People's Court of Fengxiang County found that the conditions for prosecution were met, but the People's Court of Fengxiang County should not be under the jurisdiction. After requesting instructions from the Baoji City Intermediate People's Court to designate jurisdiction, on May 13, 2016, the Baoji City Intermediate People's Court ruled that the case was under the jurisdiction of the Baoji City Chencang District People's Court. On November 10, 2016, the People's Court of Chencang District, Baoji City opened a hearing on this case.
(1) Court investigation
The prosecutors who appeared in court read out the indictment, requesting: 1. Confirm that the Fengxiang branch did not fully perform its duties according to law; 2. Order Fengxiang branch to fully perform its duties according to law, and urge Evergreen Energy to take effective measures to ensure that particulate matter emissions meet the standards.
The Fengxiang Sub-bureau's defense stated that it has imposed administrative penalties on the company and ordered production restrictions, and has fully performed its duties. Before the lawsuit, Evergreen Energy's pollution reduction equipment was already in operation, and the procuratorial organs no longer need to file a lawsuit.
At the stage of court proof and cross-examination, the prosecutors in court showed the basis of the administrative duties of Fengxiang Branch, regarding whether Fengxiang Branch fully performed its statutory duties in accordance with the law, and the emission data of Evergreen Energy and Chemical's particulate matter from January 1, 2015 to May 8, 2016, etc. evidence. It proved that as of the time before the lawsuit was filed, the Evergreen Energy Chemical Humidity Electrostatic Precipitation System had not been completed and accepted and the particulate matter was still discharged in excess of the standard, and the continuous pollution problem to the surrounding atmospheric environment has not been completely solved.
In response to the indictment, the Fengxiang branch submitted a form for daily supervision of Evergreen Energy and various types of punishment documents made on Evergreen Energy since July 2015 and other evidence materials, proving that it has fully implemented the environmental supervision of the counterparty in accordance with the law. Responsibility.
In response to the evidence presented by the Fengxiang branch, the prosecutors who appeared in court believed that they could only prove that the Fengxiang branch had imposed administrative penalties on Evergreen Energy, but could not prove that they had fully performed their duties in accordance with the law and achieved the purpose of performing their duties. Before the lawsuit, Evergreen Energy's emissions were still not up to standard.
(2) Court debate
Prosecutors who appeared in court pointed out that the failure of Fengxiang Branch to fully perform its duties according to law was mainly manifested in three aspects:
First, the Fengxiang Branch did not supervise the counterparty in accordance with the law to strictly implement the "three simultaneous" regulations on the design, construction, and use of environmental protection facilities for construction projects. Although the environmental protection facilities of Evergreen Energy were designed and constructed at the same time as the construction project, they were not used at the same time.
Second, the Fengxiang branch did not take effective measures to deal with the illegal emission of particulate matter by Evergreen Energy and Chemical in the early stage. Since January 1, 2015, the emission concentration of Evergreen Energy and Chemical's particulate matter has exceeded the standard of 20mg/m³, up to 72mg/m³. However, Fengxiang Branch did not take effective administrative supervision measures to deal with it. It was not until July 7, 2015 that the "Environmental Violations Correction Notice" was issued for violations of excessive particulate emissions.
The third is that Fengxiang Sub-bureau has not fully used regulatory measures in accordance with the law to urge Evergreen Energy to correct illegal acts. Evergreen Energy failed to complete the rectification as required within two months after receiving the "Notice of Correction of Environmental Illegal Acts within a Time Limit", and Fengxiang Branch did not take corresponding measures to impose high-limit penalties.
The Fengxiang Sub-bureau replied that it had fulfilled its statutory duties and imposed administrative penalties on Evergreen Energy on many occasions. The excessive emission of particulate matter was due to changes in local standards. On March 27, 2016, Evergreen Energy Chemical's pollution reduction equipment was already in operation, and the prosecutors did not need to file a lawsuit.
In response to the Fengxiang branch’s defense, the procuratorate put forward a debate: Regarding the evergreen pollutant discharge, the Fengxiang branch did not perform its duties due to its duties. One is that the fine of 50,000 yuan is not a high-limit penalty. Second, in accordance with relevant regulations, when local standards are stricter than national standards, local standards should be implemented according to law. The third is that on March 27, 2016, Evergreen Energy Chemical's pollution reduction equipment has been put into operation, but the particulate matter emission data is still unstable, and there is still a problem of substandard. Fourth, during the litigation, Fengxiang Branch only issued daily administrative penalties on May 16, 2016, and fined Changqing Energy and Chemical Corporation for violations of 6.45 million yuan.
On August 22, 2016, Evergreen Energy's pollution reduction equipment was officially put into operation after evaluation. After testing by a third-party testing agency, Evergreen Energy's particulate emissions have continued to stably meet national and local emission standards. On December 20, 2016, the procuratorial agency withdrew the second request, namely to urge Evergreen Energy to take effective measures to ensure that particulate matter emissions meet national and local standards.
(3) Results of the trial
On December 28, 2016, the People's Court of Chencang District, Baoji City, Shaanxi Province made a first-instance judgment, confirming that the defendant's Fengxiang branch had not fully performed its responsibilities for the environmental supervision of the counterpart Evergreen Energy and was illegal.
【Guiding significance】
The pre-litigation procedure is the pre-procedure for the prosecution to initiate public interest litigation. When handling public interest litigation cases, it is necessary to investigate and verify the illegal facts, focusing on the objective performance of the administrative agency’s failure to perform their duties or incomplete performance of their duties, subjective faults, the relationship with the consequences of violations of national interests or social public interests, and related legal basis , Policy requirements, document regulations, etc., comprehensively collect and fix evidence, put forward procuratorial suggestions according to law on the basis of finding out the facts, and urge administrative agencies to correct violations and perform their duties according to law. If the administrative agency fails to perform its duties in full in accordance with the law within the time limit required by the procuratorial suggestion, and the national interest or public interest is still being violated, the procuratorial agency shall file a public interest lawsuit in the people's court in accordance with the law.
Judgments and determinations of administrative organs’ failure to perform statutory duties in accordance with the law should be based on the statutory duties of administrative organs as stipulated by law, compared with the list of administrative organs’ law-enforcement powers and responsibilities, to determine whether the provisions of laws, regulations and regulatory documents are fully used or exhausted Administrative supervision means to stop illegal acts, whether national interests or social public interests are effectively protected is the standard. Although the administrative agency has adopted some administrative supervision or punishment measures, but has not fully used or exhausted administrative supervision methods to stop the illegal behavior in accordance with the law, and the state of national interest or social public interest has not been effectively corrected, it shall be determined that the administrative agency has not fully performed its duties in accordance with the law .
【Regulations】
Article 15 Paragraph 2 of the Environmental Protection Law of the People's Republic of China
Article 5, Article 7, Article 43, Article 99 of the Air Pollution Prevention and Control Law of the People's Republic of China
Article 51 of the Administrative Punishment Law of the People's Republic of China
Article 25, Paragraph 4 of the Administrative Procedure Law of the People's Republic of China
Article 5 and Article 10 of the Measures for the Implementation of Continuous Penalties by the Environmental Protection Department
Article 15 and Article 20 Paragraph 1 of the "Regulations on the Administration of Environmental Protection of Construction Projects"
Article 14 and Paragraph 3 of Article 17 of "Administrative Measures for Environmental Protection Acceptance Acceptance of Construction Projects"
"Emission Standard of Air Pollutants for Thermal Power Plants"
"Air Pollutant Emission Limits for Key Industries in Guanzhong Region"
Case of not performing duties according to law , including the Urban and Rural Planning and Construction Bureau of Changsha County, Hunan Province
(Experiment No. 50)
【Key words】
Administrative public interest litigation, ecological environment protection, supervision and performance of duties
【gist】
If procuratorial organs have achieved the purpose of urging administrative organs to perform their duties in accordance with the law and safeguarding national and social public interests through procuratorial suggestions, they do not need to file a lawsuit in the people's court.
[Basic case]
In June 2013, the fourth phase of the Venice City project developed by Changsha Venice City Real Estate Development Co., Ltd. (hereinafter referred to as Venice City Real Estate Company) began construction. The project has made major adjustments to the nature, scale, and floor area ratio of the originally planned project, and it failed to resubmit the environmental impact assessment document for approval in accordance with the "Environmental Impact Assessment Law of the People's Republic of China" before the construction started. On August 29, 2016, the Administrative Law Enforcement Bureau of Changsha County, Hunan Province made an administrative penalty decision on the Venice City Real Estate Company, ordering the company to stop the construction of the fourth phase of the project and imposing a fine of 100,000 yuan. Although the Venice City Real Estate Company paid the fine, it did not stop the construction. As of March 7, 2018, the project has completed 1-6 buildings. Construction of foundation pits started for 7-8 buildings without a construction permit (stopped state), and construction of 9 buildings has not started.
[Propose procuratorial suggestions]
On July 20, 2017, the People’s Procuratorate of Changsha City, Hunan Province participated in the supervision of the Central Environmental Supervision Team and found that the Urban and Rural Planning and Construction Bureau of Changsha County and the Administrative Law Enforcement Bureau of Changsha County did not perform their duties in accordance with the law, resulting in damage to the national and social public interests Clues. After reporting to the Hunan Provincial People’s Procuratorate, the Hunan Provincial People’s Procuratorate handed clues to the case to the Changsha City People’s Procuratorate for handling.
The investigation by the People's Procuratorate of Changsha City found that from April 22, 2003 to March 14, 2017, the construction land of the fourth phase of the Venice City project was located within the protection scope of the reference drinking water source first-level protection zone. After March 14, 2017, according to the delineation of the drinking water source protection zone adjusted by the Hunan Provincial People's Government, the construction project land is located within the protection scope of the drinking water source secondary protection zone. After investigation and verification, the Changsha City People’s Procuratorate believes that the Changsha County Urban and Rural Planning and Construction Bureau and other three administrative agencies have failed to perform their duties in accordance with the law, causing a significant impact on the local ecological environment and drinking water source safety, and infringing on the public interest. among them:
The Urban and Rural Planning and Construction Bureau of Changsha County knew that the fourth phase of the Venice City project must re-apply the environmental impact assessment documents, but without re-declaring, it issued a construction project planning permit and a construction project construction permit, resulting in illegal construction of the project and to the local The ecological environment has a major impact.
The Changsha County Administrative Law Enforcement Bureau, knowing that the environmental impact assessment of the fourth phase of the Venice City project has not been declared and approved for construction, after making a decision to stop the construction and impose a fine of 100,000 yuan, it did not take further measures, resulting in the The final construction of Projects 1 to 6 was completed, and the illegal act of excavating foundation pits for 7 to 8 of the project without construction permits was not ordered to restore to the original state, which caused significant ecological environmental impact.
The Changsha County Environmental Protection Bureau knew that the environmental impact assessment of the fourth phase of the Venice City project had not been declared, but stamped the application form for the planning permit for the construction of the construction project of the 1-6 building for approval, causing illegal construction activities to occur and causing damage to the local ecological environment. Have a major impact.
On December 18, 2017 and March 16, 2018, Changsha City People’s Procuratorate successively issued procuratorial recommendations to Changsha County Urban and Rural Planning and Construction Bureau, Changsha County Administrative Law Enforcement Bureau, and Changsha County Environmental Protection Bureau: First, Changsha County Administrative Law Enforcement According to law, the Bureau punishes the illegal activities of the Venice City Real Estate Company for failing to stop construction in accordance with the law and is still continuing, and ordering the restoration of the illegal construction in progress. The second is to suggest that the third administrative agency handles the environmental impact assessment of the fourth phase of the Venice City project, construction project planning permission, and construction project permission within the scope of their duties. The third is to suggest that the third administrative agency strengthens the examination and approval management and law enforcement supervision of the administrative license of the project in accordance with the law to prevent the recurrence of similar illegal acts.
After the procuratorial agency issued procuratorial recommendations, it has repeatedly coordinated and communicated with the Changsha County Administrative Law Enforcement Bureau and other three agencies and the Changsha County People’s Government to promote the implementation of relevant procuratorial recommendations. The three agencies all responded in writing to the Changsha City People's Procuratorate's procuratorial suggestions on schedule. On April 10, 2018, the Changsha County Administrative Law Enforcement Bureau made an administrative penalty decision on the Venice City Real Estate Company according to the requirements of the procuratorial suggestion: order the company to immediately stop the construction of the fourth phase of the project; restore 7-8 foundation pits and punish them Section 4365058.67 yuan. Venice City Real Estate Company accepted the punishment and restored 7-8 foundation pits. The Urban and Rural Planning and Construction Bureau of Changsha County and the Environmental Protection Bureau of Changsha County intensified the supervision of the project in accordance with the requirements of the procuratorial recommendations, standardized similar administrative examination and approval procedures, held responsible personnel accountable, and assigned four staff members to the corresponding administration Sanction.
On February 9, 2018, the People's Government of Changsha County communicated with the People's Procuratorate of Changsha City on correcting illegal acts and put forward suggestions on handling related issues. As the case involved the adjustment of drinking water source protection areas, the Changsha City People’s Procuratorate issued work recommendations to the Changsha County People’s Government in accordance with the law, suggesting that the county promptly report to the higher authorities to redefine the drinking water source protection areas; supervise and supervise the project. Relevant violations of laws and regulations exposed in law enforcement shall be dealt with in accordance with laws and regulations; strengthen the management and supervision of construction project approval, management of investment projects, further regulate administrative licensing and administrative approval behaviors, and effectively prevent damage to the ecological environment and resource protection happened.
On May 17, 2018, the Changsha County People's Government made a written reply to the Changsha City People's Procuratorate on the work proposal, and put forward specific work opinions and implementation measures on the disposal of the illegal construction of the fourth phase of the Venice City project. The Changsha City People’s Procuratorate believes that the illegal construction of the fourth phase of the Venice City project has a significant impact on the local ecological environment and drinking water sources, and harms the public interest. Considering that the first to six buildings of the project have been sold, only the sixth building is involved. 320 households, involving the interests of many people, revoking the construction project planning permit and construction project construction permit of the project and demolishing the building will harm the interests of unsuspecting people. It has been demonstrated that the adoption of remedial measures such as moving the water intake upward to change the scope of the drinking water source protection area will not affect the legal rights and life stability of many owners in Venice City, and the social and legal effects are good. According to the recommendations of the People's Procuratorate of Changsha City, the People's Government of Changsha County moved up the drinking water intake. On May 31, 2018, the water intake pumping station of the Xingsha Second Water Plant in Changsha County was newly constructed. On October 29, 2018, with the approval of the Hunan Provincial People's Government, the Changsha Municipal People's Government adjusted the protection scope of drinking water sources.
【Guiding significance】
In handling public interest litigation cases, procuratorial organs should focus on the goal of effectively safeguarding national and social public interests, strengthen communication and coordination with administrative organs, and pay attention to the implementation of various practical measures. Give full play to the function of pre-litigation procedures, and strive to achieve the organic unity of political, social and legal effects in case handling. In an event that pollutes the environment or destroys the ecology, where multiple administrative agencies have illegally performed their functions or inaction, the procuratorial agency may respectively put forward procuratorial recommendations and urge them to perform their respective duties in accordance with the law. According to the law, when there are a variety of administrative supervision and punishment measures to choose from, it should proceed from the protection of national interests or social public interests to the greatest extent, and it is recommended that administrative agencies adopt the best supervision and punishment measures that do not detract from the legitimate rights and interests of non-infringing subjects as much as possible. .
【Regulations】
Article 61 of the Environmental Protection Law of the People's Republic of China
Article 66 of the Water Pollution Prevention and Control Law of the People's Republic of China
Article 31 of the Environmental Impact Assessment Law of the People's Republic of China
Article 25, Paragraph 4 of the Administrative Procedure Law of the People's Republic of China
Article 11 of the "Environmental Administrative Punishment Measures"
The case of Zeng Yun infringing on the honour of a hero
(Experiment No. 51)
【Key words】
Civil public interest litigation Honor of heroes Social public interest
【gist】
Where the actor who infringes on the name, portrait, reputation, and honor of a hero or martyr, or harms the public interest, or the close relative of the hero or martyr, does not initiate a civil lawsuit, the procuratorial organ may file a public interest lawsuit with the people’s court in accordance with the law and require the infringer to bear tort liability.
[Basic case]
On the afternoon of May 12, 2018, Xie Yong, deputy squad leader of the Chengnan Squadron, Water Brigade, Huai'an City, Jiangsu Province, died during the fire fighting and rescue operation. On May 13, the Ministry of Public Security approved Comrade Xie Yong as a martyr and issued a gold medal for dedication to national defense; on May 14, the Committee of the Jiangsu Provincial Public Security Department of the Communist Party of China ratified Comrade Xie Yong as a member of the Communist Party of China, and recorded the first-class merit; Huai’an Municipal People’s Government Comrade Xie Yong was posthumously awarded the honorary title of "Fire Fighting and Rescue Warrior".
On May 14, 2018, Zeng Yun saw other netizens mourning the martyrs Xie Yong after drinking due to his frustrated employment and unsuccessful life. In order to vent his dissatisfaction, he made a series of insulting remarks in the WeChat group. Distorting the fact that Xie Yong martyrs died heroically. The WeChat group has a total of 131 members. Many people read Zeng Yun's remarks and many people reposted them. Zeng Yun's behaviors of distorting facts and insulting the martyrs violated the reputation of the martyrs and caused a relatively bad social impact.
[Pre-litigation procedures]
On May 17, 2018, the People's Procuratorate of Huaian City, Jiangsu Province made a decision to file a case against Zeng Yun for infringing on the reputation of a hero and martyr.
The procuratorial organs conducted investigations and evidence collection around whether Zeng Yun should bear the responsibility for infringing on the reputation of the hero. After investigation and verification, Zeng Yun knew subjectively that his actions might cause harm to the reputation of martyrs, and objectively carried out illegal acts that infringed on the reputation of martyrs, which had a relatively large negative impact on society and harmed the public interest of society.
The procuratorial organ performed the pre-litigation procedures of civil public interest litigation in accordance with the law, and appointed prosecutors to Hengyang, Hunan, the hometown of Martyr Xie Yong, and solicited the opinions of Martyr Xie Yong’s parents, grandparents and brothers on whether to initiate a civil lawsuit against Zeng Yun’s infringement of the martyrs’ reputation ( The grandparents of Martyr Xie Yong have passed away). The close relatives of the martyrs declared that they would not initiate a civil lawsuit and signed a written opinion supporting the prosecution to investigate Zeng Yun's infringement liability.
【Proceedings】
On May 21, 2018, the Huai'an City People's Procuratorate filed a civil public interest lawsuit with the Huai'an Intermediate People's Court regarding the case of Zeng Yun's infringement of the reputation of Martyr Xie Yong. On June 12, the Huai'an Intermediate People's Court opened a court session to hear the case.
(1) Court investigation
The Huai’an People’s Procuratorate sent officers to appear in court as a public interest litigation prosecutor and read out the indictment, believing that Zeng Yun’s insulting language and untrue remarks violated the reputation of Martyr Xie Yong and harmed the public interest.
The prosecutor in the public interest litigation presented relevant evidence materials: First, the approval document approving the title of Comrade Xie Yong as a martyr, the documents posthumously conferring the title of “Fire Fighting and Rescue Warrior” on Comrade Xie Yong, etc., proving that Comrade Xie Yong was approved as a heroic martyr and was awarded honors title. The second is the screenshots of the chat records of Zeng Yun's WeChat group, witness testimony, etc., which prove that Zeng Yun's actions infringing on the reputation of Martyr Xie Yong and harming public interests. The third is the letter of soliciting opinions issued by the procuratorial organ to the close relatives of Martyr Xie Yong, and the written statement issued by the close relatives of Martyr Xie Yong, etc., proving that the procuratorial organ has performed the pre-litigation procedures.
Zeng Yun stated that he has no objection to the facts and reasons stated in the prosecution indictment.
(2) Court debate
The public interest litigation complainant issued a court opinion:
One is that Zeng Yun publicly made insulting remarks and distorted the fact that the hero was chased as a martyr, which infringed on the reputation of Martyr Xie Yong. Evidence fully proves that the inappropriate remarks made by Zeng Yun were known and forwarded by many netizens, which had a negative impact on society and violated the reputation of Martyr Xie Yong.
The second is that Zeng Yun's actions harmed the public interests of society. Heroic deeds are the embodiment of socialist core values and national spirit. Zeng Yun's behavior disregarded the core socialist values and seriously damaged the public interest of society.
Third, the procuratorial organs filed civil public interest lawsuits in accordance with the law, which is of great significance. The procuratorial organs filed public interest litigation against acts of infringement of the reputation of heroes and martyrs in order to serve as a warning and education to the whole society, and to form a social trend of advocating heroes, learning heroes, and inheriting heroic spirits.
Zeng Yun admitted that his improper remarks in the WeChat group caused harm to the relatives of the martyrs, and he was willing to publicly apologize through the media and read the letter of apology in court.
(3) Results of the trial
On June 12, 2018, the Huai’an Intermediate People’s Court found that Zeng Yun’s actions infringed on the reputation of Martyr Xie Yong and harmed the public interest. A judgment was made in court, ordering Zeng Yun to be within seven days from the effective date of the judgment. Publicly apologize in the local municipal newspaper.
After the verdict was pronounced in the first instance, Zeng Yun said in court that he would not appeal and was willing to actively perform the obligations determined by the verdict. On June 16, 2018, Zeng Yun published a letter of apology in the "Huai'an Daily" to eliminate the negative social impact caused by his inappropriate comments.
【Guiding significance】
Article 25 of the Law of the People’s Republic of China on the Protection of Heroes and Martyrs stipulates: “Where a hero or martyr has no close relatives or does not bring a lawsuit against a close relative, the procuratorial organ shall infringe upon the name, portrait, reputation, and honor of the hero or martyr in accordance with the law, and harm the public interest. He filed a lawsuit with the people’s court for his actions.” The image of heroes and martyrs is a manifestation of national spirit and a benchmark for leading social trends. The names, portraits, reputations and honors of heroes and martyrs not only belong to the heroes and their close relatives, but are also an important part of social justice. They carry the core values of socialism and have the nature of social welfare. Violating the reputation of heroes and martyrs is a harm to the public interest. For acts that infringe upon the reputation of heroes and martyrs, when the heroes and martyrs have no close relatives or the close relatives do not file a lawsuit, the procuratorial organs shall initiate public interest litigation in accordance with the law to defend the public interest.
The procuratorial organs perform this kind of public interest litigation duties and must confirm whether the heroes and martyrs have close relatives and whether their close relatives have filed a lawsuit before filing a lawsuit, and handle them separately. For heroic martyrs who have close relatives, the procuratorial organ shall inquire face-to-face whether the heroic martyrs' close relatives will bring a lawsuit; for heroic martyrs who have no close relatives or the whereabouts of the close relatives are unknown, the procuratorial organ may perform the notification procedure by way of announcement.
In handling such cases, the procuratorial organ not only collects and fixes evidence around the elements of infringement liability, but also investigates and collects evidence on whether the infringement has harmed the public interest. For acts of insulting or slandering heroes and martyrs in the WeChat group, we must focus on collecting evidence on the number of WeChat group members, the privacy of the WeChat group, the way to verify the group, the number of inappropriate comments read, and the number of reposts to prove infringement. The bad social impact of the behavior and its severity. When deciding whether to initiate a public interest lawsuit, the procuratorial organ should also consider the degree of the perpetrator’s subjective fault and the degree of damage to the public interest, and fully perform its duties to achieve the organic unity of political, social and legal effects.
【Regulations】
Article 22, Article 25, and Article 26 of the Law of the People's Republic of China on the Protection of Heroes and Martyrs
Article 185 of the "General Principles of the Civil Law of the People's Republic of China"
Article 15 of the Tort Liability Law of the People's Republic of China
Article 55, Paragraph 2 of the Civil Procedure Law of the People's Republic of China
Article 5 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Procuratorial Public Interest Litigation Cases"
Source: High Inspection Network