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Abstract
Pangolin crime in the People’s Republic of China (PRC) is high due to the demand for pangolins as food and as a component of traditional medicine in Chinese culture, and the large financial benefits accrued by those involved in the illegal pangolin trade. To better combat wildlife crime and protect wildlife interests, in recent years the PRC has begun to vigorously implement a mechanism of public interest litigation to redress environmental torts. In the criminal sphere, public interest litigation operates in the form of ‘criminal incidental civil public interest litigation’, with the prospect of damages and a public apology serving as a powerful substantive and moral deterrent to criminal acts that harm pangolins. However, as a new litigation system, criminal incidental civil public interest litigation still faces several problems, such as an inadequate basis in procedural law, a lack of interface with the Wild Animal Conservation Law, and confusion over the application of its remedies.
Acknowledgements
Many thanks for the kind support and encouragement of my supervisor, Ms. Amanda. Whitfort, The University of Hong Kong.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243.
2 See Property Law of the People’s Republic of China, NPC (2007) Art 49, which expired after the issue of Civil Code of the People’s Republic of China, NPC (2021).
3 See Criminal Law of the People’s Republic of China 2020 Amendment, NPC (26 December, 2020) Article 341: ‘Those who illegally hunt and kill rare and endangered wild animals which are under the state key protection plan or illegally purchase, transport or sell those rare and endangered wild animals and their manufactured products are to be sentenced to not more than five years of fixed-term imprisonment or limited incarceration, and may in addition be sentenced to a fine. In serious cases, those law offenders are to be sentenced to not less than five years and not more than 10 years of fixed term imprisonment, and may in addition be sentenced to a fine. In especially serious cases, those law offenders are to be sentenced to more than 10 years of fixed-term imprisonment, and in addition be sentenced to a fine and confiscation of their properties. Those who violate hunting law and regulations and use tools and methods which are forbidden to be used in no-hunting zones or periods and thus damage the source of wild animals and if the situation is serious are to be sentenced to not more than five years of fixed-term imprisonment or limited incarceration or probation, and in addition be sentenced to a fine. Whoever, in violation of the legislation on the administration of wild animal protection, illegally hunts, purchases, transports, or sells terrestrial wild animals that grow and reproduce naturally in the wild other than those set forth in paragraph 1 for the purpose of eating shall, if the circumstances are serious, be punished in accordance with the provision of the preceding paragraph’.
4 Wild Animal Conservation Law of the People’s Republic of China 2022 Amendment, NPC, http://www.npc.gov.cn/zgrdw/npc/xinwen/2018-11/05/content_2065670.htm.
5 See Criminal Law of the People’s Republic of China 2020 Amendment, NPC (26 December 2020) Article 151, para 2: ‘Whoever smuggles cultural relics, gold, silver or any other noble metal whose export is prohibited by the state or smuggles rare animals whose import and export are prohibited by the state or products made thereof shall be sentenced to imprisonment of not less than 5 years but not more than 10 years and a fine; if the circumstances are especially serious, shall be sentenced to imprisonment of not less than 10 years or life imprisonment and a forfeiture of property; or if the circumstances are minor, shall be sentenced to imprisonment of not more than 5 years and a fine’.
6 See Tang Weijian, ‘A Study on the Civil Public Interest Litigation Incidental to Criminal Proceedings’ [刑事附带民事公益诉讼研究] [in Chinese] (2022) 1 Journal of Shanghai University of Political Science and Law (The Rule of Law Forum) [上海政法学院学报(法治论丛)] 29.
7 See Constitution of the People’s Republic of China 2018 Amendment, NPC (11 March 2018) Article 9, para 2.
8 Ibid 5, 30.
9 See Xie Xiaojian, ‘Criminal Incidental Civil Public Interest Litigation: Institutional Innovation and Practical Breakthrough (With a Sample of 207 Adjudication Documents)’ [刑事附带民事公益诉讼: 制度创新与实践突围——以207份裁判文书为样本] [in Chinese] (2019) 5 Criminal Science [中国刑事法杂志] 93.
10 See Qiu Qiu, ‘The Development of the Principle of Public Trust and the Construction of a Theory of the Rights to Green Property’ [公共信托原则的发展与绿色财产权理论的建构] [in Chinese] (2009) 6 Law Review [法学评论] 25.
11 See Yan Yunqiu, Research on the Theory and System of Ecological and Environmental Public Interest Litigation with Chinese Characteristics [中国特色生态环境公益诉讼理论和制度研究] [in Chinese] (China University of Political Science and Law [中国政法大学出版社], 2019) 35.
12 See JL Sax, Defending the Environment: A Strategy for Citizen Action (New York, Knopf, 1971), preamble.
13 JL Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68 Michigan Law Review 471.
14 Tang (n6) 10, 39.
15 Ibid 40.
16 See the Interim Report on the Piloting of Public Interest Litigation by Procuratorial Organs, http://www.jcrb.com/xztpd/dkf/201611/jcjggyss.
17 See ‘Supreme People’s Procuratorate Held Briefing on Public Interest Litigation Work in 2018’, http://www.scio.gov.cn/xwfbh/xwbfbh/wqfbh/39595/39596/xgfbh39601/Document/1644730/1644730.htm.
18 See Zhang Jun, ‘Report of the Supreme People’s Procuratorate on the Conduct of Public Interest Litigation Prosecutions—23 October 2019 at the 14th Meeting of the Standing Committee of the 13th National People’s Congress’, https://www.spp.gov.cn/spp/tt/201910/t20191024_435925.shtml.
19 See Zhang Xueqiao, ‘Deputy Procurator-General of the Supreme People’s Procuratorate of the People’s Republic of China, Answered the Reporters’ Questions on the Typical Cases of Public Interest Litigation on Wildlife Protection issued by Procuratorial Authorities’, https://www.spp.gov.cn/spp/xwfbh/wsfbt/202002/t20200228_455360.shtml#2.
20 See ‘Typical Cases of Public Interest Litigation on Wildlife Protection issued by Procuratorial Authorities’, https://www.spp.gov.cn/spp/xwfbh/wsfbt/202002/t20200228_455360.shtml#1.
21 Criminal Law of the People’s Republic of China 2017 Amendment, NPC (4 November 2020) Article 341, para 1, which prohibits illegally hunting and killing rare and endangered wild animals, was revised as the crime of endangering rare and endangered wild animals in 2020. The original offence was worded: ‘Those who illegally hunt and kill rare and endangered wild animals which are under the state key protection plan or illegally purchase, transport or sell those rare and endangered wild animals and their manufactured products are to be sentenced to not more than five years of fixed-term imprisonment or limited incarceration, and may in addition be sentenced to a fine. In serious cases, those law offenders are to be sentenced to not less than five years and not more than 10 years of fixed-term imprisonment, and may in addition be sentenced to a fine. In especially serious cases, those law offenders are to be sentenced to more than 10 years of fixed-term imprisonment, and in addition be sentenced to a fine and confiscation of their properties’.
22 The Protective Grade of pangolin in Mainland China has been raised to First Grade in 2020, see Announcement of the National Forestry and Grassland Administration on the Adjustment of Protection Level for Pangolin, NFGA, (3 June 2020).
23 It can be interpreted with reference to Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations, SPC (2015) Article 18. The original context is as follows: ‘For any conduct that pollutes the environment and damages the ecology, which has damaged the public interest or has the major risk of damaging the public interest, the plaintiff may request the defendant to assume the civil liabilities including but not limited to the cessation of the tortious act, removal of the obstruction, elimination of the danger, restoration to the original state, compensation for losses, and apology’.
24 See (2020) No.116 Criminal Judgment of First Instance issued by the People’s Court of Dali City, (2901) Yunnan Province.
25 See (2018) No. 148 Criminal Judgment of First Instance issued by the People’s Court of Dali City, Dali Bai Autonomous Prefecture, (0428) Yunnan Province; (2019) No. 126 Criminal Judgment of First Instance issued by the People’s Court of Yuanjiang Hani, Yi and Dai Autonomous County, Yuxi City, (0428) Yunnan Province; and (2020) No. 113 Criminal Judgment of First Instance issued by the People’s Court of Chengjiang, Yuxi City, (0422) Yunnan Province.
26 See (2020) No. 213 Criminal Judgment of First Instance issued by the People’s Court of Zhenjiang District, Shaoguan City, (0204) Guangdong Province.
27 See (2021) No. 397 Criminal Judgment of First Instance issued by the People’s Court of Xiushui County, Jiujiang City, (0424) Jiangxi Province.
28 Ibid 19.
29 See (2019) No. 669 Criminal Judgment of First Instance issued by the People’s Court of Yuzhou District, Yulin City, (0902) Guangxi Zhuang Autonomous Region.
30 See Zhou Zhaomin et al, ‘Allometry of Scales in Chinese Pangolins (Manis pentadactyla) and Malayan Pangolins (Manis javanica) and Application in Judicial Expertise’ [中国穿山甲与爪哇穿山甲甲片异速生长分析及其在司法鉴定中的应用] [in Chinese] (2012) 3 Zoological Research [动物学研究].
31 Alum (aluminum potassium sulphate dodecahydrate) is an inorganic substance used to make Chinese medicine. In preparation for sale, practitioners soak the scales in alum water in order to increase their weight and profit margin.
32 Civil Code of the People’s Republic of China, NPC, (2021) Article 179: ‘Civil liability shall be assumed primarily in the following manners: (1) Cessation of infringement. (2) Removal of obstacles. (3) Elimination of danger. (4) Restitution of property. (5) Restoration to the original condition. (6) Repair, reworking, or replacement. (7) Continued performance. (8) Compensation for loss. (9) Payment of liquidated damages. (10) Elimination of adverse effects and rehabilitation of reputation. (11) Making an apology. Where any law provides for punitive damages, such a law shall apply. The manners of assuming civil liability as set forth in this article may be applied alone or by a combination’.
33 See Huang Zhong, ‘A Forgotten “Oriental Experience”: Further Discuss on the Legalization of Apology’ [一个被遗忘的”东方经验”——再论赔礼道歉的法律化] [in Chinese] (2015) 4 Tribune of Political Science and Law [政法论坛] 116.
34 See Wang Zejian, The Law of Personality—Legal Hermeneutics, Comparative Law and Case Studies [人格权法——法释义学、比较法、案例研究] [in Chinese] (Beijing University Press [北京大学出版社], 2013) 528.
35 See Yang Guoshu, Chinese Psychology and Behaviour: A Study of Localisation [中国人的心理与行为: 本土化研究] [in Chinese] (China Renmin University Press [中国人民大学出版社], 2004) 110, 111, 112.
36 See Zhai Xuewei, The Reproduction of Favors, Face and Power [人情、面子与权力的再生产] [in Chinese] 162 (Beijing University Press [北京大学出版社], 2005).
37 See Huang Zhong, ‘On the Possibility and Construction about the Legalization of Apology’ [赔礼道歉的法律化: 何以可能及如何实践] [in Chinese] (2009) 2 Law and Social Development [法制与社会发展] 121,122 (2009).
38 This interpretation has been substituted by the Interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate of Several Issues Concerning the Application of Law in Handling Criminal Cases of Destroying Wild Animal Resources, issued on June 4, 2022, and effective on September 4, 2022.
39 See Chen Jing and Liu Mingrui, ‘Reflections on Compensation for Public Interest Damages in the Field of Wildlife Resources Protection’ [关于野生动物资源保护领域公益损害赔偿问题的思考] [in Chinese] (2020) 12 Legal System and Society [法制与社会] 46.
40 See Tang Lijuan, ‘Exploration of Litigation Claims in Ecological Civil Public Interest Litigation’ [生态环境民事公益诉讼之诉讼请求探究] [in Chinese] (2021) 4 The Chinese Procurators [中国检察官] 53.
41 See Feng Jia and Bo Xiaobo, ‘On Public Interest Litigation in the Amendment of the Wildlife Protection Law’ [论《野生动物保护法》修改中的公益诉讼问题] [in Chinese] (2020) 6 Environmental Protection [环境保护] 28 (2020).
42 See Xu Hang, ‘Protecting Wildlife: The Call for Public Interest Litigation’ [为野生动物”保驾”: 公益诉讼号角吹响] [in Chinese] (2020) 6 The People’s Congress of China [中国人大] 29.
43 Wild Animal Conservation Law of the People’s Republic of China 2022 Amendment, NPC (30 December 2022) Article 63: ‘Where wild animal resources or ecology or environment is destroyed or public interests are damaged in violation of the provisions of this Law, lawsuits may be filed with the with the people’s courts in accordance with the Environmental Protection Law of the People’s Republic of China, the Civil Procedure Law of the People’s Republic of China, the Administrative Litigation Law of the People’s Republic of China and other laws’.
44 Civil Code of the People’s Republic of China, NPC, (2021) Article 1232: ‘Where a tortfeasor violates the provisions of laws and intentionally causes environmental pollution or ecological damage, resulting in serious consequences, the victim shall have the right to claim corresponding punitive compensation’.