CHINA Law and Practice Contributed by: Rongliang Wu, Mei Wan, Qirong Huang and Xueqi Huang, Jin Mao Law Firm
for serious environmental pollution. Enterprises typi- cally face criminal fines; individuals may be sentenced to up to seven years in prison plus fines. For severe illegal acts that cause grave consequences (eg, caus- ing injuries/deaths), imprisonment can be extended up to a maximum of 15 years. Environmental Administrative Liability Environmental administrative liability mainly includes administrative penalties and compulsory enforcement measures. Per the Administrative Penalties Law and ecological environment penalty measures, penalty types cover: • warnings, fines and confiscation of illegal gains/ property; • temporary licence detention, qualification down- grade and licence revocation; • production/business restrictions, suspension or closure; • time-limited demolition; • administrative detention; and • other legally prescribed penalties. Violators failing to rectify within deadlines may face daily fines to increase penalty intensity. For serious violations, authorities may also impose compulsory measures such as sealing up or confiscating property. Environmental Civil Liability Environmental civil liability mainly applies to environ- mental pollution and ecological damage, with liability forms under the Civil Code including: • cessation of the infringement;
Polluters must bear tort liability if their acts harm oth- ers; the infringed can claim for compensation, an apology or restoration. For ecological damage, pro- vincial/municipal governments and their designated agencies or legal organisations may claim damages from polluters. This liability follows the no-fault principle and inverse burden of proof: the actor must prove no liability grounds (as per law) and no causal link between their act and the damage. Public interest litigation is also involved in civil liability (see 11.1 Civil Claims ). The Draft Ecological and Environmental Code (Second Reading) has also adjusted the statute of limitations for initiating environmental civil lawsuits, increasing it from the previous three years to five years. The limita- tion period shall commence from the date on which the party knows or ought to know of the damage sus- tained and the identity of the person liable. 5.2 Liability for Historical Environmental Incidents or Damage Historical pollution problems mainly concern soil and groundwater pollution. Given that the historical pol- lution prevention and control facilities and environ- mental management system were not satisfied, there may be landfill waste, chemical leakage and sudden accidents that result in soil and groundwater pollution. When the land is handed over to the next owner or returned to the government, it may be found that the damage caused by the historical pollution accident still exists. The land needs to be investigated and eval- uated according to the current laws and regulations or even organised for restoration. Responsibility for restoration is still allocated according to the “polluter pays” principle. The “Changzhou poisoned land” case found that the operator that caused historical pollution should bear the environmental tort liability. 5.3 Key Defences Civil Law/Codes, Tortious Liability and Key Defences China’s civil liability for compensation adopts the prin- ciple of “filling up”. The main defences against envi- ronmental civil liability are:
• removal of obstacles; • elimination of danger; • restitution of property;
• restoration to the original condition; • repair, reworking or replacement;
• continued performance; • compensation for loss; • payment of liquidated damages; • elimination of adverse effects and rehabilitation of reputation; and • offering an official apology.
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