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Ten Model Cases regarding Ecological Environmental Protection Published by the Supreme People's Court [Effective]
最高人民法院发布10起生态环境保护典型案例 [现行有效]
【法宝引证码】

Ten Model Cases regarding Ecological Environmental Protection Published by the Supreme People's Court 

最高人民法院发布10起生态环境保护典型案例

(March 2, 2019) (2019年3月2日)

1. Case of Environmental Pollution by Defendant Dong Chuanqiao and Other 18 Persons 一、被告人董传桥等19人污染环境案
2. Case of Smuggling of Rare Animals by Defendant Zhuo Wen 二、被告人卓文走私珍贵动物案
3. People's Government of Shatian Township, Dongguan City v. Li Yongming (Case of dispute over liabilities arising from solid waste pollution) 三、东莞市沙田镇人民政府诉李永明固体废物污染责任纠纷案
4. Han Guochun v. Jilin Oil Field Branch of China National Petroleum Corporation (Case of dispute over liabilities arising from water pollution) 四、韩国春诉中国石油天然气股份有限公司吉林油田分公司水污染责任纠纷案
5. Changzhou Deke Chemicals Co., Ltd. v. Former Environmental Protection Department of Zhejiang Province, Former Ministry of Environmental Protection of the People's Republic of China, and Everbright Changzhou National High-Tech Zone Green Energy (Changzhou) Co., Ltd. (Case of dispute over environmental impact assessment permission) 五、常州德科化学有限公司诉原江苏省环境保护厅、原中华人民共和国环境保护部及光大常高新环保能源(常州)有限公司环境评价许可案
6. Yang Guoxian v. Water Affairs Bureau of Sangzhi County (Case of water affairs-related administrative agreement and administrative compensation) 六、杨国先诉桑植县水利局行政协议及行政赔偿案
7. People's Government of Jiangsu Province v. Anhui Haide Chemical Science and Technology Co., Ltd. (Case of compensation for ecological environment damages) 七、江苏省人民政府诉安徽海德化工科技有限公司生态环境损害赔偿案
8. China Biodiversity Conservation and Green Development Foundation v. Yamamura Glass Qinhuangdao Co., Ltd. (Civil public welfare case of air pollution liabilities) 八、中国生物多样性保护与绿色发展基金会诉秦皇岛方圆包装玻璃有限公司大气污染责任民事公益诉讼案
9. People's Procuratorate of Tongren City v. Guizhou Yuping Xiangsheng Chemicals Co., Ltd. and Guangdong Shaoguan Woxin Trading Co., Ltd. (Civil public welfare case of soil pollution liabilities) 九、铜仁市人民检察院诉贵州玉屏湘盛化工有限公司、广东韶关沃鑫贸易有限公司土壤污染责任民事公益诉讼案
10. People's Procuratorate of Sucheng District, Suqian City, Jiangsu Province v. Agriculture Committee of Shuyang County (Administrative public welfare case of failure to perform the statutory duty of forestry supervision and administration) 十、江苏省宿迁市宿城区人民检察院诉沭阳县农业委员会不履行林业监督管理法定职责行政公益诉讼案
1. Case of Environmental Pollution by Defendant Dong Chuanqiao and Other 18 Persons 一、被告人董传桥等19人污染环境案
[Basic Facts] 【基本案情】
In February 2015, defendant Dong Chuanqiao delivered waste alkali liquor that should be disposed of by Huanghua Jindong Chemical Engineering Co., Ltd. to defendant Liu Haisheng having no disposal qualification. Afterwards, Liu Haisheng contacted defendant Liu Yonghui, who rented the parking lot of defendant Li Guizhong. Concealed sewage pipes were dug and set and connected to the urban sewer networks of Li County, Hebei Province for the discharge of waste alkali liquor. From February to May 2015, by hiring defendant Shi Yuguo and other persons, Dong Chuanqiao discharged 2,816.84 tons of waste alkali liquor to the sewage pipes they dug and set and such waste alkali liquor flew into the urban sewer networks of Li County through the sewage pipes. In the meantime, from March 2015, knowing that defendant Lou He did not have the qualification for disposal of waste hydrochloric acid, defendant Gao Guangyi and other persons still delivered the recycled waste hydrochloric acid to Lou He for disposal. Lou He then delivered such waste hydrochloric acid to defendant Zhang Suo and other persons who had no disposal qualification. Zhang Suo, Duan Qingsong, and other persons contacted Li Guizhong and they decided through consultation to discharge the waste hydrochloric acid through the concealed pipes involved located in the parking lot. On May 16 and 17, 2015, Shi Yuguo and other persons discharged over 100 tons of waste alkali liquor to the urban sewer networks through the concealed pipes involved. On the morning of May 18, Zhang Suo and other persons discharged over 30 tons of waste hydrochloric acid to the concealed pipes involved. Around 13:00 on the same day, a large volume of sewage overflowed from the parking lot and surrounding sewers and a large volume of hydrogen sulfide gas was generated, resulting in the collapse and death of victim Li Qiang who operated a restaurant in the west of the parking lot despite of emergency rescue. It was identified that hydrogen sulfide was generated in the combination of the waste alkali liquor and waste hydrochloric acid involved and it overflowed in the form of gas; and Li Qiang died from hydrogen sulfide intoxication. 2015年2月,被告人董传桥将应由黄骅市津东化工有限公司处置的废碱液交由没有资质的被告人刘海生处置。后刘海生联系被告人刘永辉租用被告人李桂钟停车场场地,挖设隐蔽排污管道,连接到河北省蠡县城市下水管网,用于排放废碱液。2015年2至5月,董传桥雇佣被告人石玉国等,将2816.84吨废碱液排放至挖设的排污管道,并经案涉暗道流入蠡县城市下水管网。同时,从2015年3月起,被告人高光义等明知被告人娄贺无废盐酸处置资质,将回收的废盐酸交由娄贺处置。娄贺又将废盐酸交由无资质的被告人张锁等人处置。张锁、段青松等人又联系李桂钟,商定在其停车场内经案涉暗道排放废盐酸。2015年5月16、17日,石玉国等人经案涉暗道排放100余吨废碱液至城市下水管网。同月18日上午,张锁等人将30余吨废盐酸排放至案涉暗道。下午1时许,停车场及周边下水道大量废水外溢,并产生大量硫化氢气体,致停车场西侧经营饭店的被害人李强被熏倒,经抢救无效死亡。经鉴定,本案废碱液与废盐酸结合会产生硫化氢,并以气体形式逸出;李强符合硫化氢中毒死亡。
[Adjudication] 【裁判结果】
In the trial of first instance, the People's Court of Li County, Hebei Province held that the waste alkali liquor and waste hydrochloric acid involved were hazardous wastes listed in the Directory of National Hazardous Wastes. In violation of the state provisions, defendant Dong Chuanqiao and other persons illegally disposed of and discharged hazardous substance, which seriously polluted the environment. They have been guilty of environmental pollution. Both the illegal discharge of waste alkali liquor by Dong Chuanqiao and other persons and the illegal discharge of waste hydrochloric acid by Lou He and other persons played a decisive role in resulting in the death of Li Qiang from hydrogen sulfide intoxication and Dong Chuanqiao, Lou He, and other persons should assume the criminal liability for the death of Li Qiang. According to the criminal facts, circumstances, and social hazards, the court of first instance entered a judgment that Dong Chuanqiao and other defendants were guilty of environmental pollution and they should be sentenced to a fixed-term imprisonment ranging from seven years to two years in addition to a fine. In the trial of second instance, the Intermediate People's Court of Baoding City, Hebei Province sustained parts of the judgment of first instance. 河北省蠡县人民法院一审认为,案涉废碱液、废盐酸均被列入《国家危险废物名录》,属危险废物。被告人董传桥等违反国家规定,非法处置、排放有毒物质,严重污染环境。其行为均已构成污染环境罪。董传桥等人非法排放废碱液,娄贺等人非法排放废盐酸,均对李强硫化氢中毒死亡这一结果的发生起到了决定性的作用,应对李强的死亡结果承担刑事责任。根据各被告人的犯罪事实、情节和社会危害性,一审法院判决被告人董传桥等犯污染环境罪,判处有期徒刑七年至二年不等,并处罚金。河北省保定市中级人民法院二审对一审刑事判决部分予以维持。
[Typical Significance] 【典型意义】
This case is regarding death of a person caused by environmental pollution. Hazardous wastes have such hazardous characteristics as corrosivity, toxicity, ignitability, reactiveness, and infectivity. If they are improperly collected, stored, or disposed of, they will not only seriously endanger the safety of the ecological environment, but may directly endanger the human health and even lives. In recent years, illegal disposal of hazardous wastes has been a phenomenon despite repeated prohibition and environmental risks have been increasingly emerging. In the face of the significant growths in environmental pollution-related crimes, adhering to the strictest judicial system for environmental pollution and the strictest concepts of rule of law for environmental pollution, making more efforts to the punishments on environmental pollution-related crimes, and serving and guaranteeing the effective undertaking of endeavor to prevent and control pollution are major functions of a people's court in the work of trials. In this case, Dong Chuanqiao and other defendants dug and set concealed sewage pipes and discharged waste alkali liquor to the urban sewer networks and Zhang Suo and other defendants discharged waste hydrochloric acid by using the same concealed pipes, causing the especially serious consequence of one human death. The people's court has comprehensively implemented the criminal policy of combining leniency and strictness, given full play to the punishment and education functions of the trial of criminal cases involving environmental resources and in light of the criminal facts, circumstances, and social hazards of all defendants, determined the criminal liabilities of all defendants in such links as provision, transport, discharge, dumping, and disposal, and given all defendants heavier punishments. The trial and judgment of this case are of typical significance in sundering the underground industrial chain of illegal operation of hazardous wastes and deterring potential polluters. 本案系污染环境致人死亡案件。危险废物具有腐蚀性、毒性、易燃性、反应性、感染性等危险特性,收集、贮存或处置不当,不仅严重威胁生态环境安全,更可能直接危及人体健康甚至生命。近年来,非法处置危险废物现象屡禁不绝,环境风险日益凸显。面对环境污染犯罪呈现的大幅增长态势,坚持最严格的环保司法制度、最严密的环保法治理念,加大对环境污染犯罪的惩治力度,服务保障打好打赢污染防治攻坚战,是人民法院审判工作的重要职责。本案中,被告人董传桥等挖设隐蔽排污管道,将废碱液排放至城市下水管网,被告人张锁等利用同一暗道排放废盐酸,造成一人死亡的特别严重后果。人民法院全面贯彻宽严相济刑事政策,充分发挥环境资源刑事审判的惩治和教育功能,结合各被告人犯罪事实、情节和社会危害性,依法认定提供、运输、排放、倾倒、处置等环节各被告人的刑事责任,从重判处刑罚。本案的审理和判决对于斩断危险废物非法经营地下产业链条、震慑潜在的污染者具有典型意义。
2. Case of Smuggling of Rare Animals by Defendant Zhuo Wen 二、被告人卓文走私珍贵动物案
[Basic Facts] 【基本案情】
In July 2015, instigated by defendant Zhuo Wen, Li Weiwen, defendant in another case, carried two suitcases and arrived at the Guangzhou Baiyun International Airport by airplane. He entered by selecting the lane of nothing to declare and declared no item to the Customs. Upon check, customs officers seized 259 turtles from the suitcases carried by Li Weiwen. It was identified that the aforesaid turtles included 12 black pond turtles (Geoclemys under Geoemydidae) and 247 Indian roofed turtles (Kachuga under Geoemydidae), which were all protected rare animals in Appendix I to the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the value thereof amounted to CNY6.475 million in total. 2015年7月,另案被告人李伟文根据被告人卓文的指使携带两个行李箱,乘坐飞机抵达广州白云机场口岸,并选择无申报通道入境,未向海关申报任何物品。海关关员经查验,从李伟文携带的行李箱内查获乌龟259只。经鉴定,上述乌龟分别为地龟科池龟属黑池龟12只、地龟科小棱背龟属印度泛棱背龟247只,均属于受《濒危野生动植物种国际贸易公约》附录I保护的珍贵动物,价值共计647.5万元。
[Adjudication] 【裁判结果】
In the trial of first instance, the Intermediate People's Court of Guangzhou City, Guangdong Province held that defendant Zhuo Wen ignored the state laws, evaded customs control, and instigated another person to smuggle rare animals whose export and import were prohibited by the State and he was guilty of smuggling rare animals with particularly serious circumstances. The court of first instance entered a judgment that Zhuo Wen was guilty of smuggling rare animals and he should be sentenced to a fixed-term imprisonment of 12 years with confiscation of his personal property of CNY200,000. The Higher People's Court of Guangdong Province sustained the judgment of first instance. 广东省广州市中级人民法院一审认为,被告人卓文无视国家法律,逃避海关监管,指使他人走私国家禁止进出口的珍贵动物入境,其行为已构成走私珍贵动物罪,且情节特别严重。一审法院判决卓文犯走私珍贵动物罪,判处有期徒刑十二年,并处没收个人财产20万元。广东省高级人民法院二审维持一审判决。
[Typical Significance] 【典型意义】
This case is of smuggling of rare animals as listed in the appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Biodiversity is essential to human survival and development and wild fauna and flora species are important components of biodiversity. When the buying stops, the killing can too. Protecting wild fauna and flora is the joint responsibility of the entire human race. As the contracting party of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, China should positively perform the international obligations as prescribed in the Convention and severely crack down on criminal offenses of smuggling endangered species. In this case, in violation of the state laws and customs regulations, defendant Zhuo Wen evaded customs control and instigated another person to enter China by illegally carrying rare animals whose export and import were prohibited by the State. The people's court legally determined that the criminal circumstances were particularly serious and Zhuo Wen was given a criminal penalty, which has demonstrated the steadfast determination of the people's court in legally and severely cracking down on and containing crimes involving wild fauna and flora resources. The trial and judgment of this case have good demonstration effects on educating and warning the public to establish the legal awareness and voluntarily protect the ecological environment especially wild fauna and flora resources. 本案系走私《濒危野生动植物种国际贸易公约》附录所列珍贵动物的犯罪案件。生物多样性是人类生存和发展的必要条件,野生动植物种是生物多样性的重要组成部分。没有买卖,就没有杀戮。保护野生动植物是全人类的共同责任。我国作为《濒危野生动植物种国际贸易公约》的缔约国,积极履行公约规定的国际义务,严厉打击濒危物种走私违法犯罪行为。本案中,被告人卓文违反国家法律及海关法规,逃避海关监管,指使他人非法携带国家禁止进出口的珍贵动物入境。人民法院依法认定其犯罪情节特别严重,判处刑罚,彰显了人民法院依法严厉打击和遏制破坏野生动植物资源犯罪的坚定决心。本案的审理和判决对于教育警示社会公众树立法律意识,自觉保护生态环境尤其是野生动植物资源,具有较好的示范作用。
3. People's Government of Shatian Township, Dongguan City v. Li Yongming (Case of dispute over liabilities arising from solid waste pollution) 三、东莞市沙田镇人民政府诉李永明固体废物污染责任纠纷案
[Basic Facts] 【基本案情】
As found in an effective criminal judgment, from March to May 2016, in violation of the state regulations, Li Yongming dumped about 600 tons of electroplating wastes where heavy metals exceeded the prescribed limits in 60 trucks in Nizhou Village, Shatian Township, causing serious environmental pollution. Li Yongming was guilty of environmental pollution. From July to September 2016, the People's Government of Shatian Township, Dongguan City (hereinafter referred to as the “Government of Shatian Township”) have twice authorized testing institutions to test the pollution item and paid the testing charges of CNY17,500 and CNY31,650. From August to September 2016, the Environmental Protection Bureau of Dongguan City held an expert consultation meeting and the Government of Shatian Township paid the expert review fee of CNY13,800. The Government of Shatian Township authorized the relevant enterprise to dispose of the electroplating wastes and paid a total of CNY2,941,000. In December 2016, it was confirmed upon the second testing of the polluted land involved that the content of heavy metal has met the environmental protection requirements and ecological restoration was temporarily not required. The Government of Shatian Township paid the testing charge of CNY19,200. The Government of Shatian Township authorized a law firm to serve as an agent and paid the legal service fee of CNY39,957. 生效刑事判决认定,2016年3至5月,李永明违反国家规定向沙田镇泥洲村倾倒了约60车600吨重金属超标的电镀废料,严重污染环境,其行为已构成污染环境罪。2016年7至9月,东莞市沙田镇人民政府(以下简称沙田镇政府)先后两次委托检测机构对污染项目进行检测,分别支出检测费用17500元、31650元。2016年8至9月,东莞市环境保护局召开专家咨询会,沙田镇政府为此支付专家评审费13800元。沙田镇政府委托有关企业处理电镀废料共支出2941000元。2016年12月,经对案涉被污染地再次检测,确认重金属含量已符合环保要求,暂无需进行生态修复,沙田镇政府为此支付检测费用19200元。沙田镇政府委托法律服务所代理本案,支付法律服务费39957元。
[Adjudication] 【裁判结果】
In the trial of first instance, the No. 2 People's Court of Dongguan City, Guangdong Province held that the Government of Shatian Township paid the testing charge of CNY68,350 for solid wastes at the ferry in Nizhou Village, Shatian Township, the expert review fee of CNY13,800, and the sludge disposal charge of CNY2,941,000, CNY3,023,150 in total. The Government of Shatian Township authorized qualified companies or individuals to handle the corresponding matters and submitted the qualification documents, contracts, and payment vouchers as evidence. The volume of solid wastes dumped by Li Yongming accounted for 25.6% of the total volume of solid wastes that have been disposed of by the Government of Shatian Township. Therefore, the amount of loss that should be borne by Li Yongming was CNY773,926.4 according to the proportion. The legal service fee paid by the Government of Shatian Township for this case should also be borne by Li Yongming. The Government of Shatian Township was not at fault with respect to the occurrence of the tort and the damage caused. The court of first instance entered a judgment that Li Yongming should pay the Government of Shatian Township CNY773,926.4 for the disposal of electroplating wastes, testing, and expert review and CNY39,957 for legal services. The Intermediate People's Court of Dongguan City, Guangdong Province entered a judgment of second instance that Li Yongming should pay the Government of Shatian Township CNY773,926.4 for the disposal of electroplating wastes, testing, and expert review. 广东省东莞市第二人民法院一审认为,沙田镇政府为清理沙田镇泥洲村渡口边的固体废物支出检测费用68350元、专家评审费13800元、污泥处理费2941000元,以上合计3023150元。沙田镇政府系委托具有资质的公司或个人来处理对应事务,并提交了资质文件、合同以及付款单据予以证明。李永明倾倒的固体废物数量占沙田镇政府已处理的固体废物总量的25.6%,故李永明按照比例应承担的损失数额为773926.4元。沙田镇政府为本案支出的法律服务费亦应由李永明承担。沙田镇政府对于侵权行为的发生及其损害结果均不存在过错。一审法院判决李永明向沙田镇政府赔偿电镀废料处理费、检测费、专家评审费773926.4元,法律服务费39957元。广东省东莞市中级人民法院二审判决李永明向沙田镇政府赔偿电镀废料处理费、检测费、专家评审费773926.4元。
[Typical Significance] 【典型意义】
This case is of dispute over liabilities arising from pollution caused by solid wastes. The ecological environment is a key factor in the healthy lives of the people and an important legal interest requiring the joint protection by criminal and civil laws. The facts that have been ascertained in an effective criminal judgment may serve as the basis for case-finding in a civil case if there is no contrary evidence to overturn them. The trial courts of this case have accurately applied the Environmental Protection Law of the People's Republic of China. When punishing the crime of environmental pollution according to the law, they supported the loss of the Government of Shatian Township arising from the disposal of environmental pollution, which has highlighted the principle of “whoever pollutes the environment shall eliminate and control the pollution,” fully reflected the costs for committing environmental pollution crimes, and played good deterrent effects. This case has also played some regulatory and guiding roles in the division of responsibilities, especially in reviewing and determining whether there are any loopholes in the regulation of the local government and whether the local government disposes of environmental pollution in a timely manner. The trial and judgment of this case have played good promoting and demonstrating effects in educating enterprises and individuals to engage in production according to the law and urging the governmental departments to strengthen regulation. 本案系固体废物污染责任纠纷。生态环境是人民群众健康生活的重要因素,也是需要刑事和民事法律共同保护的重要法益。生效刑事判决审理查明的事实,在无相反证据足以推翻的情况下,可以作为民事案件认定事实的根据。本案审理法院正确适用《中华人民共和国环境保护法》,在依法惩治污染环境罪的同时,对于沙田镇政府处理环境污染产生的损失依法予以支持,体现了“谁污染、谁治理”的原则,全面反映了污染环境犯罪成本,起到了很好的震慑作用。本案对于责任的划分,特别是对地方政府是否存在监管漏洞、处理环境污染是否及时的审查判断,也起到了一定的规范、指引作用。本案的审理和判决对于教育企业和个人依法生产、督促政府部门加强监管有着较好的推动和示范作用。
4. Han Guochun v. Jilin Oil Field Branch of China National Petroleum Corporation (Case of dispute over liabilities arising from water pollution) 四、韩国春与中国石油天然气股份有限公司吉林油田分公司水污染责任纠纷案
[Basic Facts] 【基本案情】
In 1997, Han Guochun and the Baoshi Villagers' Committee concluded a Contract for the Contracting of Caogouzi. After obtaining the right to contracted management of the fishpond involved, Han Guochun engaged in aquaculture. On September 9, 2010, there was oil leakage in the Da-119 oil well of Jilin Oil Field Branch of China National Petroleum Corporation (hereinafter referred to as “Jilin Branch of CNPC”) which was about 1 km away from the fishpond contracted by Han Guochun and some leaked crude oil flew into Han Guochun's fishpond with the flood. From September 14 to 19, Jilin Branch of CNPC conducted cleanup on the scene of pollution. The water quality monitoring report issued by the environmental monitoring station authorized by the Fishery Administration and Fishing Port Supervision State of Da'an City showed that the content of oil in the fishpond seriously exceeded the prescribed limits and the ambient water quality was not suitable for aquaculture. Han Guochun requested the Intermediate People's Court of Baicheng City, Jilin Province to order that Jilin Branch of CNPC should pay him CNY3,015,040.36 as compensation for his economic losses, including fish-farming losses in 2010, losses arising from fish-farming failure in 2011, and expenses arising from repairs of fishpond dams and decontamination by water injunction. 韩国春与宝石村委会于1997年签订《承包草沟子合同书》后,取得案涉鱼塘的承包经营权,从事渔业养殖。2010年9月9日,中国石油天然气股份有限公司吉林油田分公司(以下简称中石油吉林分公司)位于韩国春鱼塘约一公里的大-119号油井发生泄漏,泄漏的部分原油随洪水下泄流进韩国春的鱼塘。中石油吉林分公司于9月14日至9月19日在污染现场进行了清理油污作业。大安市渔政渔港监督管理站委托环境监测站作出的水质监测报告表明,鱼塘石油含量严重超标,水质环境不适合渔业养殖。韩国春请求法院判令中石油吉林分公司赔偿3015040.36元经济损失,包括2010年养鱼损失、2011年未养鱼损失、鱼塘围坝修复及注水排污费用。
[Adjudication] 【裁判结果】
In the trial of first instance, the Intermediate People's Court of Baicheng City, Jilin Province held that the principle of general tort accountability should apply to this case and Han Guochun failed to prove the fact of damages and the existence of causal relationship. Therefore, the Intermediate People's Court of Baicheng City should enter a judgment to dismiss Han Guochun's claims. In the trial of second instance, the Higher People's Court of Jilin Province held that Han Guochun failed to prove the occurrence of decontamination by water injunction for three times and the causal relationship among expenses arising from repairs of fishpond dams, losses arising from fish-farming failure in 2011, and pollution caused by Jilin Branch of CNPC. Therefore, the Higher People's Court of Jilin Province should commute the judgment of first instance and only support Han Guochun's claim for fish-farming losses in 2010, CNY1,058,796.25. In the retrial, the Supreme People's Court held that this case was of dispute over tortious liabilities arising from environmental pollution caused by pollution of the fishpond in the oil leakage. Han Guochun bore the burden of proof that Jilin Branch of CNPC committed pollution, the fishpond suffered damages due to the pollution, and there was relevance between the crude oil pollution and the damages. Therefore, he has performed the burden of proof; Jilin Branch of CNPC failed to prove that there was no causal relationship between its pollutant discharge and the damages suffered by Han Guochun. Therefore, it should assume the corresponding liability for damages. The discharge of pollutants was not limited to active release or introduction of pollutants and it included passive pollution accompanied by business activities of enterprises. Jilin Branch of CNPC was owner of the abandoned oil well involved. No matter whether it was at fault that the crude oil in the abondaned oil well was leaked and flew into Han Guochun's fishpond, it should assume the liability of compensation for tort damages. The flood was an important medium for the occurrence of the pollution incident and a main cause for Han Guochun's fish-farming losses in 2010. It may serve as the consideration for mitigated liability of Jilin Branch of CNPC. By taking full account of the case facts, the Supreme People's Court commuted the judgment and ordered that Jilin Branch of CNPC should pay Han Guochun CNY1,678,391.25 as compensation for his economic losses. 吉林省白城市中级人民法院一审认为,本案应适用一般侵权归责原则,韩国春未能证明损害事实及因果关系的存在,故判决驳回其诉讼请求。吉林省高级人民法院二审认为,韩国春未能证明三次注水排污事实的发生,未能证明鱼塘围坝修复费用、2011年未养鱼损失与中石油吉林分公司污染行为之间的因果关系,故仅改判支持其2010年养鱼损失1058796.25元。最高人民法院再审认为,本案系因原油泄漏使鱼塘遭受污染引发的环境污染侵权责任纠纷。韩国春举证证明了中石油吉林分公司存在污染行为,鱼塘因污染而遭受损害的事实及原油污染与损害之间具有关联性,完成了举证责任;中石油吉林分公司未能证明其排污行为与韩国春所受损害之间不存在因果关系,应承担相应的损害赔偿责任。排放污染物行为,不限于积极的投放或导入污染物质的行为,还包括伴随企业生产活动的消极污染行为。中石油吉林分公司是案涉废弃油井的所有者,无论是否因其过错导致废弃油井原油泄漏流入韩国春的鱼塘,其均应对污染行为造成的损失承担侵权损害赔偿责任。洪水系本案污染事件发生的重要媒介以及造成韩国春2010年养鱼损失的重要原因,可以作为中石油吉林分公司减轻责任的考虑因素。综合本案情况,改判中石油吉林分公司赔偿韩国春经济损失1678391.25元。
[Typical Significance] 【典型意义】
This case is of dispute over tortious liabilities arising from environmental pollution caused by pollution of a rural fishpond due to crude oil leakage. The tough battle of guaranteeing the control of agricultural and rural pollutions through judicial services is an important part of the tough battle of guaranteeing the pollution prevention and control by judicial services and also a vital task in the strategy of guaranteeing rural revitalization by judicial services. It has great significance in legally resolving prominent ecological environment problems in agriculture and rural areas. This case has reaffirmed the burden of proof of both parties in similar cases, specified that the “discharge of pollutants” is not limited to active release or introduction of pollutants and it also includes passive pollution accompanied by business activities of enterprises, and explored the rules on torts caused by multiple factors. The proper trial of this case has reflected the roles of environmental justice in coordinating and balancing the relationship between safeguarding the people's livelihood and developing the economy. It has not only safeguarded the lawful rights and interests of the infringed and highlighted the judicial safeguard for healthy aquaculture in agriculture, but played some guiding roles in urging oil enterprises to perform more duties of care. 本案系因原油泄漏致使农村鱼塘遭受污染引发的环境污染侵权责任纠纷。司法服务保障农业农村污染治理攻坚战是司法服务保障污染防治攻坚战的重要组成部分,也是司法服务保障乡村振兴战略的重要任务,对于依法解决农业农村突出生态环境问题具有重要意义。本案重申了此类案件双方当事人的举证责任,明确了“排放污染物行为”,不限于积极的投放或导入污染物质的行为,还包括伴随企业生产活动的消极污染行为,并对多种因素造成侵权结果的规则进行了探索。本案的正确审理,体现了环境司法协调平衡保障民生与发展经济之间的关系,既保护了被侵权人的合法权益,体现了对农业水产健康养殖的司法保障,同时也对督促石油企业履行更高的注意义务具有一定的指引作用。
5. Changzhou Deke Chemicals Co., Ltd. v. Former Environmental Protection Department of Zhejiang Province, Former Ministry of Environmental Protection of the People's Republic of China, and Everbright Changzhou National High-Tech Zone Green Energy (Changzhou) Co., Ltd. (Case of environmental impact assessment permission) 五、常州德科化学有限公司诉原江苏省环境保护厅、原中华人民共和国环境保护部及光大常高新环保能源(常州)有限公司环境评价许可案
[Basic Facts] 【基本案情】
Everbright Changzhou National High-Tech Zone Green Energy (Changzhou) Co., Ltd. (hereinafter referred to as “Everbright Company”) planned to invest and establish a domestic waste incineration power BOT project in Changzhou City, Jiangsu Province. In 2014, Everbright Company submitted to the former Environmental Protection Department of Jiangsu Province (hereinafter referred to as the “Environmental Protection Department of Jiangsu Province”) the Environmental Impact Report, the Technical Evaluation Opinions, the Preliminary Review Opinions, and other materials and applied for environmental impact assessment permission. Upon acceptance, the Environmental Protection Department of Jiangsu Province successively published the acceptance information and the announcement on proposed approval and upon review, issued the Official Reply to approve the project construction. Changzhou Deke Chemicals Co., Ltd. (hereinafter referred to as “Deke Company”) was an enterprise that has suspended production nearby the project involved with the business scope of manufacturing of cosmetic ingredients. It refused to accept the Official Reply and filed an application for administrative reconsideration with the former Ministry of Environmental Protection of the People's Republic of China (hereinafter referred to as the “Ministry of Environmental Protection”). Upon acceptance of the application, the Ministry of Environmental Protection sent to the Environmental Protection Department of Jiangsu Province such materials as the Written Notice on Reply to Administrative Reconsideration and the Written Application for Administrative Reconsideration and sent to the former Environmental Protection Bureau of Changzhou City, Jiangsu Province the Letter of Authorized On-site Investigation. Upon receipt of the Written Reply to Administrative Reconsideration and the Report on On-site Investigation, the Ministry of Environmental Protection issued the Written Decision on Administrative Reconsideration that the Official Reply should be sustained. 光大常高新环保能源(常州)有限公司(以下简称光大公司)拟在江苏省常州市投资兴建生活垃圾焚烧发电BOT项目。2014年,光大公司向原江苏省环境保护厅(以下简称江苏省环保厅)报送《环境影响报告书》《技术评估意见》《预审意见》等材料,申请环境评价许可。江苏省环保厅受理后,先后发布受理情况及拟审批公告,并经审查作出同意项目建设的《批复》。常州德科化学有限公司(以下简称德科公司)作为案涉项目附近经营范围为化妆品添加剂制造的已处于停产状态的企业,不服该《批复》,向原中华人民共和国环境保护部(以下简称环境保护部)申请行政复议。环境保护部受理后,向江苏省环保厅发送《行政复议答复通知书》《行政复议申请书》等材料,并向原江苏省常州市环境保护局发送《委托现场勘验函》。环境保护部在收到《行政复议答复书》《现场调查情况报告》后,作出维持《批复》的《行政复议决定书》。
[Adjudication] 【裁判结果】
In the trial of first instance, the Intermediate People's Court of Nanjing City, Jiangsu Province held that Deke Company was located nearby the project involved. It alleged that the Official Reply had adverse impacts on its production and operation, it had the right to institute an administrative action, and it had the qualification of plaintiff. The entity that prepared the environmental impact assessment of the project involved and the entity that conducted the technical evaluation were independent legal persons with class A qualification. During the preparation of the Written Report on Environmental Impacts, they have fully safeguarded the public's participatory right. On the basis of such materials submitted by Everbright Company as the Report on Environmental Impacts, the Technical Evaluation Reports, and the Preliminary Review Opinions, the Environmental Protection Department of Jiangsu Province published the project involved, issued the announcement, and prepared the Official Reply upon review according to feedbacks. The administrative reconsideration involved of the Ministry of Environmental Protection also complied with the provisions of the Administrative Reconsideration Law and the Regulation on the Implementation of the Administrative Reconsideration Law. The court of first instance entered a judgment to dismiss the claims of Deke Company. In the trial of second instance, the Higher People's Court of Jiangsu Province held that in the approval of the Report on Environmental Impacts, the Environmental Protection Department of Jiangsu Province has performed the review functions for such issues as project site selection and environmental impacts. Therefore, it entered a judgment of second instance to sustain the judgment of first instance. In the retrial review, the Supreme People's Court held that Deke Company was not an environmentally sensitive target subject to environmental protection around the project involved and it has suspended production at that time. There was no evidence proving material interest relationship between Deke Company and Everbright Company regarding the environmental protection administrative licensing invovled. In the environmental impact assessment of the project involved, the public's participatory rights have been guaranteed. In the process of granting the environmental impact assessment permission, the Environmental Protection Department of Jiangsu Province has performed the review functions for such issues as project site selection and balancing of the total volume of pollutants and it did not infringe upon Deke Company's rights. The granting of the environmental impact assessment permission by the Environmental Protection Department of Jiangsu Province and the administrative reconsideration by the Ministry of Environmental Protection complied with the provisions of the relevant laws and regulations. The Supreme People's Court ruled to dismiss the application of Deke Company for retrial. 江苏省南京市中级人民法院一审认为,德科公司位于案涉项目附近,其认为《批复》对生产经营有不利影响,有权提起行政诉讼,具有原告主体资格。案涉项目环评编制单位和技术评估单位均是具有甲级资质的独立法人,在《环境影响报告书》编制期间,充分保障了公众参与权。江苏省环保厅依据光大公司报送的《环境影响报告书》《技术评估意见》《预审意见》等材料,进行公示、发布公告,并根据反馈情况经审查后作出《批复》,并不违反相关规定。环境保护部作出的案涉行政复议行为亦符合行政复议法及实施条例的规定。一审法院判决驳回德科公司的诉讼请求。江苏省高级人民法院二审认为,江苏省环保厅在审批《环境影响报告书》时已经履行了对项目选址、环境影响等问题的审查职责,故判决维持一审判决。最高人民法院再审审查认为,德科公司并非案涉项目厂界周围的环境敏感保护目标,且当时处于停产状态,没有证据证明德科公司与光大公司之间就案涉环境保护行政许可存在重大利益关系。案涉项目环评过程中保障了公众参与权,江苏省环保厅在作出环境评价许可过程中履行了对项目选址、污染物排放总量平衡等问题的审查职责,亦未侵犯德科公司的权利。江苏省环保厅的环境评价许可行政行为、环境保护部的行政复议行为均符合相关法律、法规的规定。最高人民法院裁定驳回德科公司的再审申请。
[Typical Significance] 【典型意义】
The project involved is a domestic waste incineration power project, which is beneficial to the society but may cause some impacts on the surrounding ecological environment. Residents or enterprises surrounding such projects may often be concerned about the possible adverse impacts caused by such projects and do not welcome the construction of such projects nearby, thus forming a dilemma of “Not In My Back Yard” (NIMBY). With urbanization and industrialization in China, there are more and more such issues regarding NIMBY and the frequent occurrence of conflicts arising from NIMBY gradually appears. The trial of this case has provided a solution to how to legally solve the dilemma of NIMBY. With respect to construction projects with the nature of public interests, the construction undertaker should perform the obligation of information disclosure and the competent administrative department of the government should strictly perform the regulatory functions, so as to fully guarantee the public's participatory rights and prevent or mitigate the possible impacts of the project on the surrounding ecological environment to the maximum extent; and local citizens, legal persons, and other organizations should, in accordance with the legal provisions, exercise the public's participatory rights and safeguard their lawful environmental rights and interests. 本案所涉项目系生活垃圾焚烧发电项目,对社会整体有益,但也可能对周围生态环境造成一定影响。此类项目周边的居民或者企业往往会对项目可能造成的负面影响心存担忧,不希望项目建在其附近,由此形成“邻避”困境。随着我国城市化和工业化进程,“邻避”问题越来越多,“邻避”冲突逐渐呈现频发多发趋势。本案的审理对于如何依法破解“邻避”困境提供了解决路径。即对于此类具有公共利益性质的建设项目,建设单位应履行信息公开义务,政府行政主管部门应严格履行监管职责,充分保障公众参与权,尽可能防止或者减轻项目对周围生态环境的影响;当地的公民、法人及其他组织则应依照法律规定行使公众参与权、维护自身合法环境权益。
6. Yang Guoxian v. Water Affairs Bureau of Sangzhi County (Case of water affairs-related administrative agreement and administrative compensation) 六、杨国先诉桑植县水利局水利行政协议及行政赔偿案
[Basic Facts] 【基本案情】
According to the relevant official replies of the Water Affairs Department of Hunan Province and the People's Government of Sangzhi County, the Water Affairs Bureau of Sangzhi County authorized an auction agency to conduct a public auction of the mining rights of sand and gravel in such rivers and watercourses as the main stream, south source, central source, and north source of the Lishui River in Sangzhi County, Zhangjiajie City. During this period, the Administrative Office of the National Giant Salamander Nature Reserve of Zhangjiajie (hereinafter referred to as the “Administrative Office of the National Giant Salamander Nature Reserve”) informed the Water Affairs Bureau of Sangzhi County in a letter that the mining of sand in the reaches within a nature reserve constituted a suspected violation of law and demanded the Water Affairs Bureau of Sangzhi County that the auction of the mining rights of the corresponding reaches should be terminated. Upon competitive bidding, Yang Guoxian won the bid for the reservoir area of the Hualan Power Station on the Liujiahe River. After paying the closing price of CNY1 million and the auction commission of CNY50,000, Yang Guoxian and the Water Affairs Bureau of Sangzhi County concluded a Contract for the Transfer of Mining Rights of Sand and Gravel in the Reaches and Watercourses of the Reservoir Area of the Hualan Power Station on the Liujiahe River (hereinafter referred to as the “Transfer Contract”). In order to perform the Transfer Contract, Yang Guoxian constructed a highway, built two sets of sand dredgers (four sand dredgers), and successively borrowed two loans from the bank. Yang Guoxian filed an application with the Water Affairs Bureau of Sangzhi County for granting him the license for sand mining on watercourses. The Water Affairs Bureau of Sangzhi County did not handle the application on the ground that Yang Guoxian failed to submit materials as required. 桑植县水利局依据湖南省水利厅和桑植县人民政府的相关批复,委托拍卖机构对张家界市桑植县澧水干流、南、中、北源等河流河道砂石开采权进行公开拍卖。期间,张家界大鲵国家级自然保护区管理处(以下简称大鲵自然保护区管理处)函告桑植县水利局在自然保护区河段采砂行为涉嫌违法,要求终止对相关河段采砂权的拍卖。通过竞标,杨国先竞得刘家河花兰电站库区,在缴清100万元成交价及5万元拍卖佣金后与桑植县水利局签订了《张家界市桑植县刘家河花兰电站库区河段河道砂石开采权出让合同》(以下简称《出让合同》)。杨国先为履行合同修建公路一条,造采砂船两套(四艘),先后向银行贷款两笔。杨国先向桑植县水利局申请发放河道采砂许可证,桑植县水利局以杨国先未按要求提交资料为由未予办理。
[Adjudication] 【裁判结果】
In the trial of first instance, the People's Court of Sangzhi County, Hunan Province held that the sand mining reaches under the administrative agreement in dispute has been within the scope of the national nature reserve at the time of the auction and conclusion of the Transfer Contract and it was an area of banned sand mining. After identifying the auction by the Water Affairs Bureau of Sangzhi County, the Administrative Office of the National Giant Salamander Nature Reserve demanded termination of the auction according to its function and without the approval of the competent department of the National Giant Salamander Nature Reserve, the Water Affairs Bureau of Sangzhi County could not continue the transfer. The paid transfer of the mining right of the watercourse involved was not approved by the relevant competent department authorized by the Station Council. The Water Affairs Bureau of Sangzhi County implemented the auction and transfer in violation of the prohibitive provisions and the Transfer Contract concluded was invalid. After concluding the Transfer Contract, both parties misunderstood the granting of the sand mining permit and finally Yang Guoxian failed to obtain the sand mining permit since he could not submit complete application materials and did not satisfy the requirements for granting the permit. The failure to actually perform the Transfer Contract had something to do with the failure of the Water Affairs Bureau of Sangzhi County to perform the functions of announcement and publication in the implementation of the administrative licensing. The aforesaid violation of law committed by the Water Affairs Bureau of Sangzhi County resulted in failure to actually perform the administrative agreement and objective existence of economic losses, and the Water Affairs Bureau of Sangzhi County should assume the liability for compensation. In the judgment of first instance, the court of first instance confirmed that the Transfer Contract involved was invalid and the Water Affairs Bureau of Sangzhi County should return to Yang Guoxian the transfer fund and compensate for the corresponding losses. In the trial of second instance, the Intermediate People's Court of Zhangjiajie City, Hunan Province sustained the judgment of first instance. 湖南省桑植县人民法院一审认为,争议行政协议项下的采砂河段在实施拍卖和签订出让协议时已是国家级自然保护区范围,属于禁止采砂区域,大鲵自然保护区管理处在发现桑植县水利局的拍卖行为后,按照职责要求终止拍卖,桑植县水利局在未取得自然保护区主管部门批准的情况下不能继续实施出让行为。该河道采砂权有偿出让行为未经国务院授权的有关主管部门同意,桑植县水利局违反禁止性规定,实施拍卖出让,所签订的《出让合同》无效。双方当事人在签订《出让合同》后对采砂许可证的颁发产生误解,最终杨国先因不能提交完整申请材料、不符合颁证条件而未取得采砂许可证,《出让合同》没有实际履行与桑植县水利局在实施行政许可过程中未尽到公示告知职责有一定的关系。桑植县水利局的上述违法行为致使行政协议未能实际履行,造成的经济损失客观存在,应承担赔偿责任。一审法院判决确认案涉《出让合同》无效,桑植县水利局返还杨国先出让款并赔偿相关损失。湖南省张家界市中级人民法院二审维持一审判决。
[Typical Significance] 【典型意义】
Nature reserves are important carriers for maintaining ecological diversity, constructing national ecological security barriers, and building Beautiful China. Conflicts between environmental protection and economic development are prominent in nature reserves and there is such issue of function connection of the competent department of resources and the administrative department of a nature reserve. Under the existing laws, the strictest protection measures should be adopted to nature reserves. In the trial of the relevant cases, the people's courts should pay attention to giving paly to the supervision and prevention functions of environmental resource justice, examine the validity of contracts involving public environmental interests according to their powers, and prevent ecological environment damages caused by unreasonable resource exploitation and utilization by means of legally affirming the invalidity of contracts and prohibiting any alteration of use purpose of natural ecological environment. In this case, a negative evaluation was made on the validity of the contract for the transfer of mining rights in a nature reserve and the transferor should refund the counterparty the transfer fund and compensate for losses, which is not only protection of the counterparty's lawful property rights, but a policy declaration and behavior guidance for administrative organs, and satisfies the concepts and requirements of maintaining green development and guaranteeing the ecological civilization security in nature reserves. 自然保护区是维护生态多样性,构建国家生态安全屏障,建设美丽中国的重要载体。自然保护区内环境保护与经济发展之间的矛盾较为突出,存在资源主管部门与自然保护区管理部门之间的职责衔接问题。现行法律对自然保护区实行最严格的保护措施,人民法院在审理相关案件时,应注意发挥环境资源司法的监督和预防功能,对涉及环境公共利益的合同效力依职权进行审查,通过依法认定合同无效,严禁任意改变自然生态空间用途的行为,防止不合理开发利用资源的行为损害生态环境。本案对在自然保护区签订的采矿权出让合同效力给予否定性评价,由出让人返还相对人出让款并赔偿损失,既是对相对人合法财产权利的保护,也是对行政机关、社会公众的一种政策宣示和行为引导,符合绿色发展和保障自然保护区生态文明安全的理念和要求。
7. People's Government of Jiangsu Province v. Anhui Haide Chemical Science and Technology Co., Ltd. (Case of compensation for ecological environment damages) 七、江苏省人民政府诉安徽海德化工科技有限公司生态环境损害赔偿案
[Basic Facts] 【基本案情】
From April to May 2014, Yang Feng, manager of the sales department of Anhui Haide Chemical Science and Technology Co., Ltd. (hereinafter referred to as “Haide Company”), delivered 102.44 tons of waste alkali liquor generated in the production of Haide Company to Li Hongsheng and other persons having no qualification for the disposal of hazardous wastes at the price of CNY1,300 per ton in three times. Li Hongsheng and other persons then transferred such waste alkali liquor to Sun Zhicai, Ding Weidong, and other persons having no qualification at the price of CNY500 or 600 per ton. Without disposal, the aforesaid waste alkali liquor was discharged to the Yangtze River system, which seriously polluted the environment. In particular, 20 tons of waste alkali liquor discharged to the Yangtze River resulted in the interruption of water intake from the centralized drinking water source in Jingjiang City, Jiangsu Province for more than 40 hours; 53.34 tons of waste alkali liquor discharged to the New Tongyang Canal resulted in the interruption of water intake from the centralized drinking water source for urban areas of Xinhua City, Jiangsu Province for more than 14 hours. The relevant departments in Jingjiang City and Xinghua City separately adopted emergency measures. Yang Feng, Li Hongsheng, and other persons were guilty of environmental pollution and they should be subject to criminal liability according to the law. It was evaluated that the three water pollution incidents have caused environmental damages of CNY17.3126 million in total. 2014年4至5月间,安徽海德化工科技有限公司(以下简称海德公司)营销部经理杨峰分三次将海德公司生产过程中产生的102.44吨废碱液,以每吨1300元的价格交给没有危险废物处置资质的李宏生等人处置,李宏生等人又以每吨500元、600元不等的价格转交给无资质的孙志才、丁卫东等人。上述废碱液未经处置,排入长江水系,严重污染环境。其中,排入长江的20吨废碱液,导致江苏省靖江市城区集中式引用水源中断取水40多个小时;排入新通扬运河的53.34吨废碱液,导致江苏省兴化市城区集中式饮水源中断取水超过14个小时。靖江市、兴化市有关部门分别采取了应急处置措施。杨峰、李宏生等人均构成污染环境罪,被依法追究刑事责任。经评估,三次水污染事件共造成环境损害1731.26万元。
[Adjudication] 【裁判结果】
In the trial of first instance, the Intermediate People's Court of Taizhou City, Jiangsu Province held that as a chemical enterprise, Haide Company had the statutory duty of preventing and controlling hazardous wastes generated in the production and operation, the illegal disposal of hazardous wastes by Yang Feng, person-in-charge of the sales department, was a duty-related act, and Haide Company should assume the liability of compensation for damages caused thereby. The expenses for restoration of ecological environmental damages in the Jingjiang Section of the Yangtze River were legally evaluated by the Jiangsu Society for Environmental Sciences; and the expenses for restoration of ecological environmental damages in the New Tongyang Canal were obtained by analogy and recognized by expert assistants appearing in court. The pollution acts of Haide Company would inevitably cause heavy loss of ecological environment service functions in the two places and downstream regions. The claim of the People's Government of Jiangsu Province that such loss should be calculated at 50% of the expenses for restoration of ecological environment damages was rational. The amount in the original claim of the People's Government of Jiangsu Province was obviously low and it was increased upon interpretation, which should be supported. Self-purification of a water body only made natural reduction of the density of pollutants in the water body in their flow to the downstream and it could not deny the damages that have been caused by pollutants to the water body. Therefore, it was insufficient to serve as a defense for unnecessity to restore the ecological environment. The court of first instance entered a judgment that Haide Company should compensate CNY36.3790 million for environmental restoration expenses, CNY18.1895 million for loss of ecological environment service functions, CNY260,000 for evaluation and appraisal expenses. The aforesaid expenses amounted to a total of CNY54.8285 and should be paid to the fund account for environmental public welfare lawsuits in Taizhou City. On the basis of sustaining the judgment of first instance, the Higher People's Court of Jiangsu Province entered a judgment of second instance that Haide Company may perform the duty of paying compensation by stages after it provided effective guarantee. 江苏省泰州市中级人民法院一审认为,海德公司作为化工企业,对其生产经营中产生的危险废物负有法定防治责任,其营销部负责人杨峰违法处置危险废物的行为系职务行为,应由海德公司对此造成的损害承担赔偿责任。案涉长江靖江段生态环境损害修复费用,系经江苏省环境科学学会依法评估得出;新通扬运河生态环境损害修复费用,系经类比得出,亦经出庭专家辅助人认可。海德公司污染行为必然对两地及下游生态环境服务功能造成巨大损失,江苏省人民政府主张以生态环境损害修复费用的50%计算,具有合理性。江苏省人民政府原诉讼请求所主张数额明显偏低,经释明后予以增加,应予支持。水体自净作用只是水体中污染物向下游的流动中浓度自然降低,不能因此否认污染物对水体已经造成的损害,不足以构成无需再行修复的抗辩。一审法院判决海德公司赔偿环境修复费用3637.90万元、生态环境服务功能损失1818.95万元、评估鉴定费26万元,上述费用合计5482.85万元,支付至泰州市环境公益诉讼资金账户。江苏省高级人民法院二审在维持一审判决的基础上,判决海德公司可在提供有效担保后分期履行赔偿款支付义务。
[Typical Significance] 【典型意义】
This case is one of cases of compensation for ecological environment damages filed by the people's courts at the provincial level against enterprises that have been earliest accepted by the people's courts after the establishment of the ecological environment damages compensation system is explored in the scheme for the pilot program of the ecological environment damages compensation system. The Yangtze River is the mother river of the Chinese ethnic peoples. At present, chemical enterprises along the Yangtze River are densely distributed. The prominent problem of pollutant discharge in violation of regulations has become a major hidden trouble endangering the eco-system security in the drainage basin. To strengthen judicial safeguard for the ecological environment of the Yangtze River Economic Zone, importance should be attached to the trial of cases of water pollution prevention and control and judicial means should be fully utilized to restore the damaged ecological environment, so as to promote the continuous improvement of the ecological environment quality of the Yangtze River basin and assist the high-quality development of the Yangtze River Economic Zone. The judgment of this case has expressly declared that the polluter may not claim that pollutants have not caused any damage to the water body and it is unnecessary to restore the ecological environment only on the ground that the water body has self-purification capacity. Since the environmental capacity of water is limited, the discharge of pollutants will inevitably damage such ecological environment as water body, aquatic life, riverbeds and even river bank soil. According to the damage liability principle, polluters should compensate for environmental restoration expenses and loss of ecological environment service functions. This is also a case tried by the seven-member collegiate bench after the implementation of the Law of the People's Republic of China on People's Assessors. In the case trial, four people's assessors fully raised opinions on the fact-finding and application of law according to the law, which has intensified the public participation and social supervision in the ecological environment protection of the Yangtze River basin and further improved the credibility of the judgment for ecological environment damages compensation. 本案是《生态环境损害赔偿制度改革试点方案》探索确立生态环境损害赔偿制度后,人民法院最早受理的省级人民政府诉企业生态环境损害赔偿案件之一。长江是中华民族的母亲河。目前沿江化工企业分布密集,违规排放问题突出,已经成为威胁流域生态系统安全的重大隐患。加强长江经济带生态环境司法保障,要着重做好水污染防治案件的审理,充分运用司法手段修复受损生态环境,推动长江流域生态环境质量不断改善,助力长江经济带高质量发展。本案判决明确宣示,不能仅以水体具备自净能力为由主张污染物尚未对水体造成损害以及无需再行修复,水的环境容量是有限的,污染物的排放必然会损害水体、水生物、河床甚至是河岸土壤等生态环境,根据损害担责原则,污染者应当赔偿环境修复费用和生态环境服务功能损失。本案还是《中华人民共和国人民陪审员法》施行后,由七人制合议庭审理的案件,四位人民陪审员在案件审理中依法对事实认定和法律适用问题充分发表了意见,强化了长江流域生态环境保护的公众参与和社会监督,进一步提升了生态环境损害赔偿诉讼裁判结果的公信力。
8. China Biodiversity Conservation and Green Development Foundation v. Yamamura Glass Qinhuangdao Co., Ltd. (Civil public welfare case of air pollution liabilities) 八、中国生物多样性保护与绿色发展基金会诉秦皇岛方圆包装玻璃有限公司大气污染责任民事公益诉讼案
[Basic Facts] 【基本案情】
From December 2015 to April 2016, without obtaining an air pollutant emission permit, Yamamura Glass Qinhuangdao Co., Ltd. (hereinafter referred to as “Yamamura Company”) emitted sulfur dioxide, nitrogen oxide, and other air pollutants from glass kilns by exceeding the prescribed standard and refused to make corrections. The Environmental Protection Bureau of Haigang District, Qinhuangdao City imposed four fines of CNY12.89 million in total on Yamamura Company. In February 2015, Yamamura Company concluded a General Contract for Denitrification, Desulfurization, and Dust Removal of Glass Kilns with the total amount of CNY36.17 million. In 2016, after the China Biodiversity Conservation and Green Development Foundation (“CBCGDF”) filed this lawsuit, Yamamura Company paid the administrative fine of CNY12.81 million in total and accelerated the transformation and upgrading process of denitrification, desulfurization, and dust removal. On June 15, 2016, Yamamura Company passed the environmental protection acceptance and on June 17, 2016 and June 17, 2017, it obtained the air pollutant emission permit. On December 2, 2016, Yamamura Company once again input CNY19.65 million and added one set of standby equipment for denitrification, desulfurization, and dust removal. The Center for Environmental Risk and Damage Assessment of the Chinese Academy of Environmental Planning (CAEP) accepted the authorization of the court of first instance and according to the method of virtual disposal costs, evaluated the amount of environmental damages caused by Yamamura Company from the date of damage occurrence as determined in the administrative penalty to the date when Yamamura Company passed the environmental protection acceptance to CNY1.5496 million. 2015年12月至2016年4月,秦皇岛方圆包装玻璃有限公司(以下简称方圆公司)因未取得排污许可证,玻璃窑炉超标排放二氧化硫、氮氧化物等大气污染物并拒不改正等行为,被秦皇岛市海港区环境保护局分四次罚款共计1289万元。2015年2月,方圆公司签订总金额为3617万元的《玻璃窑炉脱硝脱硫除尘总承包合同》。2016年中国生物多样性保护与绿色发展基金会(以下简称绿发会)提起本案诉讼后,方圆公司缴纳行政罚款共计1281万元,并加快了脱硝脱硫除尘改造提升进程,于2016年6月15日通过环保验收,于2016年6月17日、2017年6月17日取得排污许可证。2016年12月2日,方圆公司再次投入1965万元,增设脱硝脱硫除尘备用设备一套。环境保护部环境规划院环境风险与损害鉴定评估研究中心接受一审法院委托,按照虚拟治理成本法,将方圆公司自行政处罚认定损害发生之日至环保达标之日造成的环境损害数额评估为154.96万元。
[Adjudication] 【裁判结果】
In the trial of first instance, the Intermediate People's Court of Qinhuangdao City, Hebei Province held that after this lawsuit was filed, Yamamura Company actively input funds and accelerated the upgrading and transformation of equipment for pollution control. In the proceedings, its emission of pollutants has reached the prescribed standard upon environmental protection acceptance, it obtained the pollutant emission permit, and its illegal emission of air pollutants has already been stopped. The Center for Environmental Risk and Damage Assessment of the CAEP had the statutory qualification, the basis for evaluation has been cross-examined by both parties, and the amount of environmental damages calculated according to the method of virtual disposal costs included expenses for restoration of the polluted air environment and damages caused by illegal emission of air pollutants to the environment, which should be confirmed. The air pollution caused by Yamamura Company affected the people's daily life, which caused some mental damages and Yamamura Company should assume the civil liability for extending a formal apology. Although the CBCGDF claimed travel expenses, lawyer's expenses, and other expenses, it did not submit sufficient evidence. Such expenses should be determined depending on the actual circumstances of this case. The court of first instance entered a judgment that Yamamura Company should pay CNY1.5496 million as compensation for losses, which should be paid to the special fund account of Qinhuangdao City by three stages for environmental damage restoration in this region; publish a statement of apology on national media; and pay reasonable expenses of CNY30,000 to the CBCGDF. In the trial of second instance, the Higher People's Court of Hebei Province sustained the judgment of first instance. 河北省秦皇岛市中级人民法院一审认为,本案起诉后,方圆公司积极投入,加快治理污染设备的更新改造,诉讼过程中经环保验收已达标排放并取得排污许可证,其非法排放大气污染物的违法行为已经停止。环境保护部环境规划院环境风险与损害鉴定评估研究中心具备法定资质,评估依据已经双方当事人质证,按照虚拟治理成本法计算的环境损害数额包括修复被污染的大气环境的费用和因非法排放大气污染物给环境造成的损害两项内容,应予确认。方圆公司污染大气行为影响群众日常生活,造成了一定的精神损害,应承担赔礼道歉的民事责任。绿发会虽主张差旅费、律师费等费用,但未提交充分证据,考虑本案实际情况予以酌定。一审法院判决方圆公司赔偿损失154.96万元,分三期支付至秦皇岛市专项资金账户,用于该地区的环境修复;在全国性媒体上刊登致歉声明;向绿发会支付因本案支出的合理费用3万元。河北省高级人民法院二审维持一审判决。
[Typical Significance] 【典型意义】
This is the first public welfare case of air pollution accepted in the Beijing-Tianjin-Hebei Region. The prevention and control of air pollution is one of three tough battles of pollution prevention and control and the Beijing-Tianjin-Hebei Region and its surrounding areas are key areas in the Blue Sky Protection Campaign. The trial court of this case accurately applied the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Public Welfare Environmental Cases and in light of specific claims of the CBCGDF, defined and evaluated the environmental damages caused by Yamamura Company's illegal emission of air pollutants, positively explored the operation patterns of special fund accounts for public welfare lawsuits, and ensured that the compensation for environmental damages should be used in the restoration of the damaged environment. After this case was accepted, Yamamura Company positively paid the administrative fines, voluntarily upgraded and transformed environmental protection facilities, and became the first enterprise that has realized “two running environmental protection facilities with one standby facility” for air pollution control in this region. With good social orientation, this case has realized the prevention and restoration functions of civil public welfare environmental cases and it has also played a role of promoting enterprises to positively assume the social responsibility for ecological environment protection and adopt green production modes. The trial and public sentencing of this case have significant demonstration effects of judicial services for guaranteeing the environmental control and economic and social development in the Beijing-Tianjin-Hebei Region and its surrounding areas and will play positive roles in promoting the air pollution prevention and control and regional ecological civilization construction in the Beijing-Tianjin-Hebei Region and its surrounding areas. 本案系京津冀地区受理的首例大气污染公益诉讼案。大气污染防治是污染防治三大攻坚战之一,京津冀及周边地区是蓝天保卫战的重点区域。本案审理法院正确适用《最高人民法院关于审理环境民事公益诉讼案件适用法律若干问题的解释》,结合绿发会的具体诉讼请求,对方圆公司非法排放大气污染物造成的环境损害进行了界定和评估,积极探索公益诉讼专项资金账户运作模式,确保环境损害赔偿金用于受损环境的修复。本案受理后,方圆公司积极缴纳行政罚款,主动升级改造环保设施,成为该地区首家实现大气污染治理环保设备“开二备一”的企业,实现了环境民事公益诉讼的预防和修复功能,同时还起到了推动企业积极承担生态环境保护社会责任以及采用绿色生产方式的作用,具有良好的社会导向。本案的审理和公开宣判对司法服务保障京津冀及周边地区环境治理和经济社会发展具有重要的示范效应,将对京津冀及周边地区大气污染防治和区域生态文明建设起到积极的促进作用。
9. People's Procuratorate of Tongren City v. Guizhou Yuping Xiangsheng Chemicals Co., Ltd. and Guangdong Shaoguan Woxin Trading Co., Ltd. (Civil public welfare case of soil pollution liabilities) 九、铜仁市人民检察院诉贵州玉屏湘盛化工有限公司、广东韶关沃鑫贸易有限公司土壤污染责任民事公益诉讼案
[Basic Facts] 【基本案情】
Neither Guizhou Yuping Xiangsheng Chemicals Co., Ltd. (hereinafter referred to as “Xiangsheng Company”) nor Guangdong Shaoguan Woxin Trading Co., Ltd. (hereinafter referred to as “Woxin Company”) obtained the business license for hazardous wastes. In May 2010, the two companies established cooperation relations. Woxin Company provided Xiangsheng Company with raw materials for processing, with the processing fee of CNY240 per ton of sulphuric acid, and Woxin Company was responsible for accepting and selling sulfuric acid products and waste residues. On November 1, 2011, the two companies concluded an Agreement on Purchase and Sale of Raw Materials and the raw materials of pyrite concentrate were purchased from Danxia Smelter of Shenzhen Zhongjin Lingnan Co., Ltd. in the name of Xiangsheng Company. From November 1, 2011 to July 6, 2015, Xiangsheng Compnay obtained a total of 66,900 tons of pyrite concentrate for production of sulphuric acid. From March 30, 2015 to March 30, 2018, Xiangsheng Company was entirely contracted to Woxin Company for independent operation. During this period, an incident where high-temperature water pipes were ruptured occurred and the cooling water in the boiler in the workshop was directly discharged to the river outside the factory. In the aforesaid production process, raw materials for production, leaching water from waste residues, and industrial wastewater flowed to areas outside the factory, causing soil pollution in No. 1 and 2 areas outside the factory. It was identified that the No. 1 area was shrub grassland and the area polluted by heavy metal amounted to 3,600 square meters, which was severe pollution; the No. 2 area was farmland and the area polluted by heavy metal amounted to 39,500 square meters, in which soil in 91% of such farmland was severely polluted, soil in 7% thereof was moderately polluted, and soil in 2% thereof was mildly polluted. The content of heavy metal in crops planted in the polluted land exceeded the prescribed standard. The Environmental Protection Bureau of Yuping County twice ordered Xiangsheng Company to remove the concealed sewage discharge pipes and correct its illegal acts and imposed administrative fines on it. In September 2016, Xiangsheng Company and its legal representative Liang Changxun, and Yu Jun from Woxin Company were subject to criminal liability for committing the crime of environmental pollution. In December 2017, the Guizhou Institute of Environmental Sciences Research and Design issued the Damage Evaluation Report, in which the damages arising from soil pollution involved amounted to CNY6.397 million, including expenses for elimination of hazards and restoration of polluted land, and loss of ecological service functions during the period. 贵州玉屏湘盛化工有限公司(以下简称湘盛公司)、广东韶关沃鑫贸易有限公司(以下简称沃鑫公司)均未取得危险废物经营许可证。2010年5月,两公司建立合作关系,沃鑫公司提供原料给湘盛公司加工,加工费为生产每吨硫酸240元,硫酸产品及废渣由沃鑫公司负责接收销售。2011年11月1日,两公司签订《原料购销协议》,以湘盛公司名义对外向中金岭南丹霞冶炼厂购买硫精矿原料。2011年11月1日至2015年7月6日,湘盛公司共取得硫精矿66900吨,用于生产硫酸。2015年3月30日至2018年3月30日,湘盛公司整体承包给沃鑫公司独立经营,期间曾发生高温水管破裂事故,导致生产车间锅炉冷却水直接排入厂外河流。上述生产过程中,生产原材料和废渣淋溶水、生产废水流入厂区外,造成厂区外一、二号区域土壤污染。经鉴定,一号区域为灌草地,重金属污染面积约达3600平方米,全部为重度污染。二号区域为农田,重金属污染面积达39500平方米,91%的土壤为重度污染,7%的土壤为中度污染,2%的土壤为轻度污染。污染地块的种植农作物重金属超标。县环境保护局于2015年、2016年两次责令湘盛公司拆除排污暗管、改正违法行为,处以行政罚款。2016年9月,湘盛公司及其法定代表人梁长训、沃鑫公司余军因犯污染环境罪被追究刑事责任。2017年12月,贵州省环境科学研究设计院出具《损害评估报告》,确认案涉土壤污染损害费用包括消除危险费用、污染修复、期间生态服务功能损失共计639.7万元。
[Adjudication] 【裁判结果】
In the trial of first instance, the Intermediate People's Court of Zunyi City, Guizhou Province held that neither Xiangsheng Company nor Woxin Company had the business license for hazardous wastes and the qualification for disposal of hazardous wastes. Both companies have committed pollution in the process of production, the heavy metals in the polluted soil involved had identical components with those in the raw materials for production, waste residues, and sewage discharged by Xiangsheng Company and they were homologous. In addition, the content of heavy metals in the areas with polluted soil was considerably higher than that in the reference testing point. It was sufficient to determine that there was causal relationship between the sewage discharge of both companies and the moderate pollution of the soil involved and the crops planted thereon. At first, the two companies cooperated with each other and then Xiangsheng Company was contracted to Woxin Company. Subjectively, they had the same intention and objectively, they jointly committed the pollution. Therefore, they should jointly and severally assume the liability. The court of first instance entered a judgment that Xiangsheng Company and Woxin Company should immediately cease their infringement and conduct comprehensive rectification and environmental monitoring within the factory and may not engage in production before passing the supervision and inspection of the relevant administrative department of environmental protection; they should conduct complete pollution-free removal of all raw materials and waste residues remaining in the factory and if they failed to do so within a prescribed time limit, they should pay CNY603,000 for disposal of hazardous wastes and invite a third party to dispose of such hazardous wastes; they should restore the soil involved and if they failed to do so within a prescribed time limit, they should pay CNY2.3 million for restoration and invite a third party to restore the soil involved; and they should pay CNY1.2719 million for loss of ecological environment service functions during the period and bear the identification fee of CNY386,000. 贵州省遵义市中级人民法院一审认为,湘盛公司、沃鑫公司均无危险废物经营许可证,不具备危废处理资质。两公司生产过程中实施了污染行为,案涉污染土壤中重金属与湘盛公司生产原料、废渣及排放废水中所含重金属成分相同,具有同源性,且污染土壤区域的重金属含量均远高于对照检测点,足以认定两公司排污行为与案涉土壤及地上农作物中度污染之间的因果关系。两公司先为合作,后为承包,主观上具有共同故意,客观上共同实施了污染行为,应承担连带责任。一审法院判决湘盛公司、沃鑫公司立即停止侵害,在对生产厂区进行综合整改及环境监控,未通过相关环保行政职能部门监督验收前,不得生产;对厂区留存全部原料及废渣进行彻底无污染清除,逾期则应当支付危废处置费60.3万元,聘请第三方处置;对案涉土壤进行修复,逾期则支付修复费用230万元,聘请第三方修复;赔偿生态环境期间服务功能损失127.19万元,承担本案鉴定费38.6万元。
[Typical Significance] 【典型意义】
This is a civil public welfare case of soil pollution instituted by the procuratorial organ. Soil is important material basis for the sustainable development of economy and society. In particular, the No. 2 area invovled was agricultural land and the safety of crops and agricultural products on the land within that area directly concerns the people's physical health. The trial court has made a technical judgment of specialized issues involved by legally initiating the identification procedure. In the same time, the evaluation report issued by the identification institution provided the scheme for judgment of risks arising from soil pollution and specific restoration, which has provided specialized technical support for promoting subsequent soil restoration and control. The trial court has also issued a judicial proposal to the People's Government of Yuping County and proposed that the use purpose of the No. 2 area as agricultural land should be altered through the land expropriation procedure to eliminate the possible risks of continuous planting of crops on the polluted soil to human health. In the same time, the trial court has highlighted the value and idea of protecting agricultural land and basic farmland, incorporated loss of functions of agricultural land caused by the alteration of its use purpose to loss of service functions during the period, and established a cohesion path between civil judgment and administrative law enforcement. The accurate trial of this case has built a brand-new compound governance path of “restoration by the person-in-charge + governmental regulation + enforcement by the people's court + supervision by the people's procuratorate” for the soil pollution invovled, effectively promoted the restoration and governance of polluted soil, ensured the safety of agricultural production environment in the areas involved, and highlighted the good effects of judicial protection of public interests. 本案是由检察机关提起的土壤污染民事公益诉讼案件。土壤是经济社会可持续发展的重要物质基础。尤其本案所涉二号区域用途为农用耕地,其上农作物及农产品的安全更是直接关切群众身体健康。本案审理法院依法启动鉴定程序对案涉专业问题作出技术判断,鉴定机构出具的评估报告同时提供了土壤污染的风险判定和具体修复方案,为推动后续土壤修复治理提供了专业技术支撑。本案审理法院还向县政府发出司法建议,建议通过征用程序改变二号区域的农用耕地用途,消除被污染土地继续种植农作物可能带来的人体健康风险。同时,突出保护农用耕地、基本农田的价值理念,将农用耕地用途改变导致农用耕地功能丧失纳入期间服务功能损失,建立了民事裁判与行政执法之间的衔接路径。本案的正确审理,为案涉土壤污染构建了“责任人修复+政府监管+人民法院强制执行+人民检察院监督”的全新复合治理路径,有力地推进了污染土壤的修复治理,确保实现涉地农业生产环境安全,体现了司法保护公益的良好效果。
10. People's Procuratorate of Sucheng District, Suqian City, Jiangsu Province v. Agriculture Committee of Shuyang County (Administrative public welfare case of failure to perform the statutory duty of forestry supervision and administration) 十、江苏省宿迁市宿城区人民检察院诉沭阳县农业委员会不履行林业监督管理法定职责行政公益诉讼案
[Basic Facts] 【基本案情】
From January to March 2016, Zhong Xingnian unlawfully cut 444 trees at seven places of Shuyang County, with the growing stock of over 122 cubic meters. In particular, a total of 253 poplar trees were unlawfully cut within the range as specified in the plan of Shuyang County for forest land conservation and utilization. On March 7, 2017, the People's Court of Shuyang County sentenced Zhong Xingnian to a fixed-term imprisonment of seven years and six months for being guilty of unlawful tree-cutting, imposed a fine of CNY30,000, and recovered the illicit income of CNY24,000. On September 29, 2017, the People's Procuratorate of Sucheng District, Suqian City, Jiangsu Province (hereinafter referred to as the “People's Procuratorate of Sucheng District”) sent a procuratorial proposal to the Agriculture Committee of Shuyang County (hereinafter referred to as the “Shuyang Agriculture Committee”) and urged the Shuyang Agriculture Committee to legally punish Zhong Xingnian for his unlawful cutting of trees and ensure that the impaired forestry ecological environment be restored. On October 16 and December 15, 2017, the Shuyang Agriculture Committee reported in two calls that it had no right to perform the administrative duty against Zhong Xingnian. It failed to give Zhong Xingnian any administrative penalty for his unlawful cutting of trees and the forestry ecological environment at the places involved failed to be restored. On March 27, 2018, the Shuyang Agriculture Committee only reseeded 180 ash seedlings at the places where trees have been unlawfully cut. 2016年1至3月,仲兴年于沭阳县七处地点盗伐林木444棵,立木蓄积122余立方米。其中在沭阳县林地保护利用规划范围内盗伐杨树合计253棵。2017年3月7日,沭阳县人民法院以盗伐林木罪判处仲兴年有期徒刑七年六个月,并处罚金3万元,追缴违法所得2.4万元。2017年9月29日,江苏省宿迁市宿城区人民检察院(以下简称宿城区检察院)向沭阳县农业委员会(以下简称沭阳农委)发送检察建议,督促沭阳农委对仲兴年盗伐林木行为依法处理,确保受侵害林业生态得以恢复。沭阳农委于2017年10月16日、12月15日两次电话反映该委无权对仲兴年履行行政职责,未就仲兴年盗伐林木行为进行行政处理,案涉地点林地生态环境未得到恢复。2018年3月27日,沭阳农委仅在盗伐地点补植白蜡树苗180棵。
[Adjudication] 【裁判结果】
In the trial of first instance, the People's Court of Sucheng District, Suqian City, Jiangsu Province held that as the competent forestry authority in Shuyang County, the Shuyang Agriculture Committee was liable for supervision and administration of unlawful cutting of trees involved and other violations of law. The unlawful cutting of trees within the range as specified in the plan for forest land conservation and utilization by Zhong Xingnian not only infringed upon others' forestry property rights, but impaired the ecological benefits and functions of forest trees. By legally sending a procuratorial proposal to the Shuyang Agriculture Committee, the People's Procuratorate of Sucheng District urged the Shuyang Agriculture Committee to perform its duties according to law. After it ended up with nothing, the People's Procuratorate of Sucheng District instituted an administrative public welfare lawsuit, which complied with the relevant legal provisions. Due to his unlawful cutting of trees, Zhong Xingnian has been subject to criminal liabilities, including a fixed-term imprisonment, a fine, and recovery of the illicit income, which did not cover the administrative liability of reseeding trees tens of times the number of trees unlawfully cut. Upon receipt of the procuratorial proposal, the Shuyang Agriculture Committee failed to order Zhong Xingnian to reseed trees. The number of trees reseeded subsequently and the procedure for performing the duty on behalf of the law-breaker did not comply with the relevant legal provisions. Therefore, the Shuyang Agriculture Committee failed to perform its statutory duty in a timely, accurate, and complete manner. The judgment entered by the court of first instance confirmed that the failure of the Shuyang Agriculture Committee to perform the statutory duty of forestry supervision and administration was illegal and it should make a decision on administrative penalty in which Zhong Xingnian was ordered to reseed trees ten times of 253 poplar trees unlawfully cut. 江苏省宿迁市宿城区人民法院一审认为,沭阳农委作为沭阳县林业主管部门,对案涉盗伐林木等违法行为负有监督和管理职责。仲兴年在林地保护利用规划范围内盗伐林木,不仅侵害了他人林木所有权,也损害了林木的生态效益和功能。宿城区检察院经依法向沭阳农委发送检察建议,督促沭阳农委依法履职无果后,提起行政公益诉讼,符合法律规定。仲兴年因盗伐林木行为已被追究的刑事责任为有期徒刑、罚金、追缴违法所得,不能涵盖补种盗伐株数十倍树木的行政责任。沭阳农委收到检察建议书后未责令仲兴年补种树木,其嗣后补种的株数和代履行程序亦不符合法律规定,未能及时、正确、完全履行法定职责。一审法院判决确认沭阳农委不履行林业监督管理法定职责的行为违法,应依法对仲兴年作出责令补种盗伐253棵杨树十倍树木的行政处理决定。
[Typical Significance] 【典型意义】
This is an administrative public welfare case involving forestry instituted by the procuratorial organ. In addition to economic value, forests have such ecological values as water conservation, wind prevention and sand fixation, climate regulation, and provision of habitats for wildlife. Any organization or individual is liable for maintaining the forestry ecological environment security. The competent forestry authorities should even more scrupulously perform their duties and fulfill their functions according to the law. Article 39 of the Forestry Law of the People's Republic of China provides for that “In case of unlawful cutting of forests or other trees, compensation for damages shall be paid according to the law; the competent forestry authorities shall order the reseeding of trees tens of times the number of trees unlawfully cut, confiscate the unlawfully cut trees or income generated from selling unlawfully-cut trees, and impose a fine amounting to three to ten times the value of the unlawfully-cut trees. In case of wanton cutting of forests or other trees, the competent forestry authorities shall order the reseeding of trees five times the number of trees unlawfully cut and impose a fine amounting to two to five times the value of the wantonly-cut trees. In case of refusal to reseed trees or tree reseeding not in line with the relevant stipulations of the State, the competent forestry authorities shall do the reseeding on behalf of the law-breakers who shall pay for all the necessary expenses therein. Where the unlawful or wanton cutting of forests or other trees constitutes a criminal defense, the criminal liabilities shall be investigated and dealt with according to the law.” Most cases of forestry disputes are confluent. The same violation of law often involves various legal liabilities, including criminal liability, civil liability, and administrative liability. The accurate trial of this case is conducive to further clarifying the relations and limits of criminal liability, administrative liability, and civil liability in a public welfare case involving forestry procuratorial work and protecting the forestry ecological environment security. The trial court of this case also organized over 150 staff members of over 120 administrative law enforcement organs at the provincial, city, and county levels as well as ten deputies to people's congresses and members of the committees of the Chinese People's Political Consultative Conference to conduct on-site observations, which has produced good publicity and education effects. 本案是检察机关提起的涉林业行政公益诉讼。林木除具有经济价值外,还具有涵养水源、防风固沙、调节气候以及为野生动物提供栖息场所等生态价值。任何组织和个人均有义务保护林业生态环境安全。林业行政主管部门更应恪尽职守,依法履职。《中华人民共和国森林法》第三十九条规定:“盗伐森林或者其他林木的,依法赔偿损失;由林业主管部门责令补种盗伐株数十倍的树木,没收盗伐的林木或者变卖所得,并处盗伐林木价值三倍以上十倍以下的罚款。滥伐森林或者其他林木,由林业主管部门责令补种滥伐株数五倍的树木,并处滥伐林木价值二倍以上五倍以下的罚款。拒不补种树木或者补种不符合国家有关规定的,由林业主管部门代为补种,所需费用由违法者支付。盗伐、滥伐森林或者其他林木,构成犯罪的,依法追究刑事责任。”林业纠纷案件多具融合性,同一违法行为往往涉及刑事、民事和行政不同法律责任。本案的正确审理,有助于进一步厘清涉林业检察公益诉讼中刑事责任、行政责任以及民事责任的关系和界限,依法全面保护林业生态环境安全。本案审理法院还组织省市县三级120余家行政执法机关的150余名工作人员以及10位人大代表、政协委员旁听庭审,起到了宣传教育的良好效果。
     
     
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