CHINA Law and Practice Contributed by: Rongliang Wu, Mei Wan, Qirong Huang and Xueqi Huang, Jin Mao Law Firm
10.2 Exemplary or Punitive Damages Punitive damages are clearly stipulated in the Civil Code (which did not exist before December 2020). Where the infringer intentionally pollutes the environ- ment and damages the ecology in violation of the law and causes serious consequences, the infringed will have the right to request corresponding punitive dam- ages. There are three conditions: • violation of laws; • intentional violation; and Class or group actions are possible under the Civil Procedure Law, mainly via two forms of joint litigation: • Representative litigation with determined group size: When a group of numerous people has the same environmental claim, they elect a representa- tive to sue. The representative’s legal actions bind all group members. • Representative litigation with undetermined group size: If the claim object is similar but the number of claimants is unclear when suing, the court issues a public notice for potential claimants to register. Registered claimants elect a representative, and the representative’s actions bind all registered members. 10.4 Landmark Cases Public Interest Lawsuit on the Preventive Protection of Green Peafowls In 2016, the construction of a first-class hydropower station started in a location in Yunnan province. Its submerged area happened to be the core habitat of the green peafowl, a national first-class protected ani- mal. At that time, there were only over 200 green pea- fowls left in the wild, making it an endangered species. The destruction of its habitat would pose a survival crisis for the species. • causing serious consequences. 10.3 Class or Group Actions In 2017, after discovering this risk, the environmental organisation “Friends of Nature” filed a public interest lawsuit, demanding the suspension of the hydropower station’s construction. This case became China’s first preventive public interest lawsuit for wildlife protec- tion.
The focus of the court’s trial was “whether interven- tion is allowed when environmental risks have not yet occurred”. In March 2020, Kunming Intermediate Peo- ple’s Court, in the first instance, found that the hydro- power station’s construction posed a major survival risk to the green peafowl’s habitat, and ruled to stop the construction and prohibit water impoundment by damming. In December of the same year, Yunnan Higher People’s Court upheld the original judgment in the second instance. This case broke through the traditional judicial con- cept of “remedy only after damage occurs” and estab- lished the ecological judicial principle of “protection first, prevention foremost”, drawing a legal red line for biodiversity protection. The case also prompted Yun- nan to include the green peafowl’s habitat in the eco- logical protection red line and forced major projects to strengthen ecological assessments. It was rated as the top case among the world’s top ten biodiversity cases by the United Nations Environment Programme. 11. Contractual Agreements 11.1 Transferring or Apportioning Liability Article 153 of the Civil Code stipulates that a juris- tic act violating the imperative provisions of any law or administrative regulation shall be void, unless the imperative provisions do not result in the nullity of the juristic act. The parties may agree on the allocation of the respon- sibility and liability for the prevention and control of pollution through agreement, without violating the mandatory provisions of laws and administrative regulations. When environmental violations occur, one party has the right to require the other party to bear the corresponding liability for pollution. However, the responsibility for pollution prevention and control agreed through an agreement cannot be a defence against the infringed claiming compensation, nor can it be a defence against administrative punishment.
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