| Notice of the Supreme People's Procuratorate on Issuing the Thirteenth Group of Guiding Cases of the Supreme People's Procuratorate | | 最高人民检察院关于印发最高人民检察院第十三批指导性案例的通知 |
| (No. 30 [2018] of the Supreme People's Procuratorate) | | （高检发研字〔2018〕30号） |
| The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Procuratorate of the People's Liberation Army; and the People's Procuratorate of Xinjiang Production and Construction Corps: | | 各省、自治区、直辖市人民检察院，解放军军事检察院，新疆生产建设兵团人民检察院： |
| Upon decision of the 11th Session of the Thirteenth Procuratorial Committee of the Supreme People's Procuratorate on December 12, 2018, the case of Failure to Fully Perform Duties by the Fengxiang Branch of the Environmental Protection Bureau of Baoji City, Shaanxi Province and other two guiding cases (Cases No. 49 to 51 of the Supreme People's Procuratorate) are hereby issued as the thirteenth group of guiding cases for reference in the trial of similar cases. | | 经2018年12月12日最高人民检察院第十三届检察委员会第十一次会议决定，现将陕西省宝鸡市环境保护局凤翔分局不全面履职案等三件指导性案例（检例第49— 51号）作为第十三批指导性案例发布，供参照适用。 |
| Supreme People's Procuratorate | | 最高人民检察院 |
| December 21, 2018 | | 2018年12月21日 |
| Thirteenth Group of Guiding Cases of the Supreme People's Procuratorate | | 最高人民检察院第十三批指导性案例 |
| Case of Failure to Fully Perform Duties by Fengxiang Branch of the Environmental Protection Bureau of Baoji City, Shaanxi Province | | 陕西省宝鸡市环境保护局凤翔分局不全面履职案 |
| (Case No. 49 of the Supreme People's Procuratorate) | | （检例第49号） |
| [Keywords] | | 【关键词】 |
| Administrative public interest litigation; environmental protection; fully performing duties according to the law | | 行政公益诉讼 环境保护 依法全面履职 |
| [Key Point] | | 【要旨】 |
| When performing the environmental protection supervision duties, although an administrative organ performs duties, it fails to fully apply the administrative supervision means to stop illegal activities. Where the procuratorial organ still fails to achieve the objective of urging the administrative organ to fully perform duties according to the law upon the pre-litigation procedure, the procuratorial organ should file an administrative public interest litigation with the people's court. | | 行政机关在履行环境保护监管职责时，虽有履职行为，但未依法全面运用行政监管手段制止违法行为，检察机关经诉前程序仍未实现督促行政机关依法全面履职目的的，应当向人民法院提起行政公益诉讼。 |
| [Basic Facts] | | 【基本案情】 |
| In May 2014, the engineering project of Shaanxi Changqing Energy & Chemical Co., Ltd. (hereinafter referred to as “Changqing Energy & Chemical Company”) with the annual output of 600,000 tons of methyl alcohol was complete and with the approval of the Environmental Protection Department of Shaanxi Province, it was put into pilot production, valid until December 31, 2014. On November 24, 2014, Shaanxi Province issued the Limits for the Emission of Air Pollutants by Key Industries in Guanzhong Region. In this local standard, the emission limit for particulate matter (PM) from coal-fired boilers was 20 mg/m3 and the standard came into force on January 1, 2015. During the period of pilot production of Changqing Energy & Chemical Company, the emission value of air pollutants from coal-fired boilers was basically above the local standard of 20 mg/m3 and blow the national standard of 50 mg/m3. | | 2014年5月，陕西长青能源化工有限公司（以下简称长青能化）年产60万吨甲醇工程项目建成，并经陕西省环境保护厅审批投入试生产至2014年12月31日。2014年11月24日，陕西省发布《关中地区重点行业大气污染物排放限值》地方标准，燃煤锅炉颗粒物排放限值为20mg/m3，自2015年1月1日起实施。长青能化试生产期间，燃煤锅炉大气污染物排放值基本处于地方标准20mg/m3以上，国家标准50mg/m3以下。 |
| On January 1, 2015, after the expiration of the period of pilot production, Changqing Energy & Chemical Company failed to cease the production and the emission value of PM from coal-fired boilers sustained from 20 mg/m3 to 50 mg/m3. | | 2015年1月1日，长青能化试生产期满后未停止生产且燃煤锅炉颗粒物排放值持续在20mg/m3以上50mg/m3以下。 |
| On July 7, 2015, the Fengxiang Branch of the Environmental Protection Bureau of Baoji City, Shaanxi Province (hereinafter referred to as the “Fengxiang Branch”) issued a Notice of Correcting Environmental Violations of Law within a Prescribed Time Limit to Changqing Energy & Chemical Company and ordered it to correct the environmental violations of regulations in the production of methyl alcohol within a prescribed time limit; otherwise it would give it the maximum punishment. Changqing Energy & Chemical Company failed to effectively make rectification and the Fengxiang Branch failed to give it the maximum punishment, either. On November 18, 2015, the Fengxiang Branch issued a Decision on Administration Punishment to Changqing Energy & Chemical Company, according to which Changqing Energy & Chemical Company should effectively make rectification within one month and a fine of CNY50,000 was imposed on it. However, this enterprise did not cease the production of methyl alcohol and the emission of PM by exceeding the prescribed standard still failed to be effectively solved, which caused pollution of the ambient atmosphere. | | 2015年7月7日，陕西省宝鸡市环境保护局凤翔分局（以下简称凤翔分局）向长青能化下达《环境违法行为限期改正通知书》，责令其限期改正生产甲醇环保违规行为，否则将予以高限处罚。长青能化没有整改到位，凤翔分局未作出高限处罚。2015年11月18日，凤翔分局向长青能化下达《行政处罚决定书》，限其于一个月内整改到位，并处以5万元罚款。但该企业并未停止甲醇项目生产，颗粒物超标排放问题依然没有得到有效解决，对周围大气造成污染。 |
| [Pre-litigation Procedure] | | 【诉前程序】 |
| In the later November 2015, in the case-handling, the People's Procuratorate of Baoji City, Shaanxi Province identified that the Fengxiang Branch may have failed to diligently perform duties and it designated the People's Procuratorate of Fengxiang County to carry out investigation. The People's Procuratorate of Fengxiang County found that: Changqing Energy & Chemical Company still engaged in pilot production after the expiration of the time limit and the emission of PM by exceeding the prescribed standard. Although the Fengxiang Branch has given Changqing Energy & Chemical Company an administrative punishment, it failed to fully perform duties according to the law. On December 3, 2015, the People's Procuratorate of Fengxiang County issued a Procuratorial Proposal to the Fengxiang Branch and proposed that it should perform duties according to the law and urge Changqing Energy & Chemical Company to install equipment of pollution control and emission reduction and ensure that the emission of pollutants should reach the environmental protection standard. | | 2015年11月下旬，陕西省宝鸡市人民检察院在办案中发现凤翔分局可能有履职不尽责的情况，遂指定凤翔县人民检察院开展调查。凤翔县人民检察院查明：长青能化超期试生产且颗粒物超标排放，而凤翔分局虽对长青能化作出行政处罚，但未依法全面履职。2015年12月3日，凤翔县人民检察院向凤翔分局发出《检察建议书》，建议其依法履职，督促长青能化上线治污减排设备，确保环保达标。 |
| On January 4, 2016, the Fengxiang Branch made a written reply to the People's Procuratorate of Fengxiang County, stating that: On December 24, 2015, it issued a written Decision on Ordering Limited Production to Changqing Energy & Chemical Company and ordered it to limit production. On December 30, 2015, it issued a written Decision on Verification of Pollutant Emission and Payment of Pollutant Emission Fees, according to which Changqing Energy & Chemical Company was additionally charged with pollutant emission fees for the emission of PM by exceeding the prescribed standard from October to December 2015. | | 2016年1月4日，凤翔分局书面回复凤翔县人民检察院称：2015年12月24日对长青能化下达《责令限制生产决定书》，责令该公司限产。2015年12月30日作出《排污核定与排污费缴纳决定书》，对长青能化2015年10月至12月间颗粒物超标排放加收排污费。 |
| With respect to the written reply of the Fengxiang Branch, the People's Procuratorate of Fengxiang County further found that after the Fengxiang Branch adopted such measures as issuing a written decision on ordering limited production and imposing additional charge for pollutant emission, although Changqing Energy & Chemical Company limited production according to the requirements, the construction project of equipment for pollution control and emission reduction was not formally put into use and the emission of PM still exceeded the prescribed limit. | | 针对凤翔分局回复意见，凤翔县人民检察院进一步查明：凤翔分局作出责令限制生产决定、加收排污费等措施后，长青能化虽然按要求限制生产，但其治污减排设备建设项目未正式投入使用，颗粒物排放依然超过限值。 |
| [Proceedings] | | 【诉讼过程】 |
| Considering that the Procuratorial Proposal failed to achieve the due effects, on May 11, 2016, the People's Procuratorate of Fengxiang County filed an administrative public interest litigation with the People's Court of Fengxiang County. Upon acceptance of the case, the People's Court of Fengxiang County held that it satisfied the prosecution requirements, but it was inappropriate that the People's Court of Fengxiang County had jurisdiction over this case. Upon requesting designated jurisdiction from the Intermediate People's Court of Baoji City, on May 13, 2016, the Intermediate People's Court of Baoji City ruled according to the law that this case was under the jurisdiction of the People's Court of Chencang District, Baoji City. On November 10, 2016, the People's Court of Chencang District, Baoji City held a public trial of this case. | | 鉴于检察建议未实现应有效果，2016年5月11日，凤翔县人民检察院向凤翔县人民法院提起行政公益诉讼。凤翔县人民法院受理后，认为符合起诉条件，但不宜由凤翔县人民法院管辖。经向宝鸡市中级人民法院请示指定管辖，2016年5月13日，宝鸡市中级人民法院依法裁定本案由宝鸡市陈仓区人民法院管辖。2016年11月10日，宝鸡市陈仓区人民法院对本案公开开庭审理。 |
| I. Court Investigation | | （一）法庭调查 |
| The procuratorial personnel appearing in court read the complaint and requested to (1) confirm that the Fengxiang Branch's failure to fully perform duties according to the law was illegal; and (2) order that the Fengxiang Branch should fully perform duties according to the law and urge Changqing Energy & Chemical Company to adopt effective measures to ensure that the emission of PM satisfied the prescribed standard. | | 出庭检察人员宣读起诉书，请求：1. 确认凤翔分局未依法全面履职的行为违法；2. 判令凤翔分局依法全面履行职责，督促长青能化采取有效措施，确保颗粒物排放符合标准。 |
| In the answer, the Fengxiang Branch claimed that it has adopted such measures as giving the enterprise an administrative punishment and ordering the enterprise to limit production and it has fully performed its duties. Before the action, Changqing Energy & Chemical Company has put equipment for pollution control and emission reduction into operation and it was unnecessary for the procuratorial organ to file a lawsuit. | | 凤翔分局答辩状称其对企业采取了行政处罚、责令限制生产等措施，已经全面履行职责。诉讼前，长青能化减污设备已经运行，检察机关不需要再提起诉讼。 |
| At the stages of evidence presentation and cross-examination, with respect to whether the Fengxiang Branch has fully performed its statutory duties according to the law, the procuratorial personnel presented basis for the Fengxiang Branch's scope of administrative duties, data on emission of PM by Changqing Energy & Chemical Company from January 1, 2015 to May 8, 2016, and other evidence. The said evidence was used to prove that up to the filing of this lawsuit, the Wet Electrostatic Pre-eipitator (WESP) system of Changqing Energy & Chemical Company has not passed the completion acceptance, the PM was still emitted by exceeding the prescribed standard, and the persistent pollution of the ambient atmosphere has not been completely solved. | | 法庭举证、质证阶段，围绕凤翔分局是否依法全面履行法定职责，出庭检察人员出示了凤翔分局行政职责范围的依据，2015年1月1日至2016年5月8日长青能化颗粒物排放数据等证据。证明截至提起诉讼前，长青能化湿电除尘系统没有竣工验收并且颗粒物依然超标排放，持续给周围大气环境造成污染问题没有彻底解决。 |
| In response to the complaint, the Fengxiang Branch submitted the daily supervision forms of Changqing Energy & Chemical Company, various punishment documents of Changqing Energy & Chemical Company since July 2015, and other evidentiary materials, which proved that it has fully performed the environmental supervision duties against the counterpart. | | 凤翔分局针对起诉书，提交了对长青能化日常监管的表格及2015年7月以来对长青能化作出的各类处罚文书等证据材料，证明已经依法全面履行了对相对人的环境监管职责。 |
| In response to the evidence submitted by the Fengxiang Branch, the procuratorial personnel appearing in court believed that such evidence could only prove that the Fengxiang Branch has given Changqing Energy & Chemical Company an administrative punishment, but could not prove that it has fully performed duties according to the law and realized the purpose of performance of duty. Before this lawsuit was filed, the emission of pollutants by Changqing Energy & Chemical Company still failed to reach the prescribed standard. | | 针对凤翔分局提出的证据，出庭检察人员认为，其只能证明凤翔分局对长青能化作出了行政处罚，但不能证明依法全面履职并实现了履职目的。诉讼前，长青能化排放仍存在不达标的情况。 |
| II. Court Debate | | （二）法庭辩论 |
| The procuratorial personnel appearing in court stated that the Fengxiang Branch failed to fully perform duties according to the law mainly in the following three aspects: | | 出庭检察人员指出，凤翔分局未依法全面履职主要表现在三个方面： |
| First, the Fengxiang Branch failed to legally supervise the counterpart's strict compliance with the provisions of “three simultaneous” of design, construction, and use of environmental protection facilities with the construction project. Although the environmental protection facilities of Changqing Energy & Chemical Company were simultaneously designed and constructed with the construction project, but they were not simultaneously used with the construction project. | | 一是凤翔分局未依法监管相对人严格执行建设项目环境保护设施设计、施工、使用“三同时”的规定。长青能化的环境保护设施虽然与建设项目同时设计、同时施工，但并未同时使用。 |
| Second, at the initial stage, the Fengxiang Branch failed to adopt effective measures to punish Changqing Energy & Chemical Company for its illegal PM emission. From January 1, 2015, the concentration of PM emission by Changqing Energy & Chemical Company has exceeded the standard of 20 mg/m3 and reached 72 mg/m3 at the maximum. The Fengxiang Branch failed to adopt effective administrative supervision measures to dispose of Changqing Energy & Chemical Company and until July 7, 2015, it issued the written Notice of Correcting Environmental Violations of Law within a Prescribed Time Limit for Changqing Energy & Chemical Company's illegal PM emission by exceeding the prescribed standard. | | 二是凤翔分局初期未采取有效措施对长青能化违法排放颗粒物的行为作出处理。自2015年1月1日起，长青能化颗粒物排放浓度均超过20mg/m3的标准，最高达72mg/m3。凤翔分局却未采取有效行政监管措施予以处置，直到2015年7月7日才对颗粒物超标排放违法行为作出《环境违法行为限期改正通知书》。 |
| Third, the Fengxiang Branch failed to fully apply supervision measures according to the law to urge Changqing Energy & Chemical Company's correction of its illegal activities. Within two months upon receipt of the written Notice of Correcting Environmental Violations of Law within a Prescribed Time Limit, Changqing Energy & Chemical Company failed to make rectification according to the requirements and the Fengxiang Branch failed to adopt the corresponding measures and give it the maximum punishment. | | 三是凤翔分局未依法全面运用监管措施督促长青能化纠正违法行为。长青能化在收到《环境违法行为限期改正通知书》后两个月内未按要求整改到位，凤翔分局未采取相应措施作出高限处罚。 |
| The Fengxiang Branch contended that it has performed the statutory duties and repeatedly given Changqing Energy & Chemical Company administrative punishments, the PM emission by exceeding the prescribed standard was caused by changes in the local standard. On March 27, 2016, the equipment for pollution control and emission reduction of Changqing Energy & Chemical Company has been put into operation and it was unnecessary for the procuratorial organ to file a lawsuit. | | 凤翔分局答辩称：已履行了法定职责，多次对长青能化作出行政处罚，颗粒物超标排放是由于地方标准的变化。2016年3月27日，长青能化减污设备已经运行，检察机关无需提起诉讼。 |
| In response to the Fengxiang Branch's contention, the procuratorial organ raised the following arguments: For Changqing Energy & Chemical Company's emission of pollutants, although the Fengxiang Branch has performed duties, it failed to diligently perform duties. First, the fine of CNY50,000 imposed on Changqing Energy & Chemical Company was not the maximum punishment. Second, in accordance with the relevant provisions, where the local standard was stricter than the national standard, the local standard should be executed according to the law. Third, on March 27, 2016, the equipment for pollution control and emission reduction of Changqing Energy & Chemical Company has been put into operation, but data on PM emissions was still unstable and the PM emission still failed to reach the prescribed standard. Fourth, the Fengxiang Branch did not give an administrative punishment of consecutive daily fines until May 16, 2016 when it imposed a fine of CNY6.45 million on Changqing Energy & Chemical Company for its illegal activities. | | 针对凤翔分局答辩，检察机关提出辩论意见：对于长青能化的排污行为，凤翔分局虽有履职行为，但履职不尽责。一是作出的5万元罚款不是高限处罚。二是按照相关规定，在地方标准严于国家标准的情况下，依法应当执行地方标准。三是2016年3月27日，长青能化减污设备已经上线运行，但颗粒物排放数据仍不稳定，仍有不达标的问题。四是诉讼中，凤翔分局于2016年5月16日才作出按日连续处罚的行政处罚，对长青能化违法行为罚款645万元。 |
| On August 22, 2016, upon assessment, Changqing Energy & Chemical Company's equipment for pollution control and emission reduction has been formally put into operation and upon testing by a third testing institution, the PM emission by Changqing Energy & Chemical Company has been continuously stable and reached both the local and national emission standards. On December 20, 2016, the procuratorial organ withdrew the second claim, namely, the Fengxiang Branch should urge Changqing Energy & Chemical Company to adopt effective measures and ensure that the PM emission should reach the national and local standards. | | 2016年8月22日，长青能化减污设备经评估正式投入运行，经第三方检测机构的检测，长青能化颗粒物排放已持续稳定符合国家和地方排放标准。2016年12月20日，检察机关撤回了第二项诉讼请求，即督促长青能化采取有效措施，确保颗粒物排放达到国家标准和地方标准。 |
| III. Trial Results | | （三）审理结果 |
| On December 28, 2016, the People's Court of Chencang District, Baoji City, Shaanxi Province entered a judgment of first instance, in which defendant Fengxiang Branch's failure to fully perform the environmental supervision duties according to the law against the counterpart Changqing Energy & Chemical Company was confirmed illegal. | | 2016年12月28日，陕西省宝鸡市陈仓区人民法院作出一审判决，确认被告凤翔分局未依法全面履行对相对人长青能化环境监管职责的行为违法。 |
| [Guiding Significance] | | 【指导意义】 |
| The pre-litigation procedure is the prerequisite procedure for the procuratorial organ to file a public interest litigation. In the handling of a public interest case, the procuratorial organ should conduct investigation and verification of the illegal facts, fully collect and fix evidence by centering on the objective presentation and subjective fault of an administrative organ's failure to legally perform duties or failure to fully perform duties, and the relationship with the consequence of infringement upon the state interest or public interest as well as the relevant legal basis, policy requirements, and documents and on the basis of fact-finding, raise procuratorial proposal according to the law and urge the administrative organ to correct its illegal activities and perform the duties according to the law. Where the administrative organ fails to fully perform duties according to the law within the required time limit and the state interest or public interest is still infringed, the procuratorial organ should file a public interest litigation with the people's court according to the law. | | 诉前程序是检察机关提起公益诉讼的前置程序。办理公益诉讼案件，要对违法事实进行调查核实，围绕行政机关不依法履职或者不全面履职行为的客观表现、主观过错、与国家利益或者社会公共利益遭受侵害后果的关系以及相关的法律依据、政策要求、文件规定等全面收集、固定证据，在查清事实的基础上依法提出检察建议，督促行政机关纠正违法、依法履职。行政机关未在检察建议要求的期限内依法全面履行职责，国家利益或者社会公共利益仍然遭受侵害的，检察机关应当依法向人民法院提起公益诉讼。 |
| The judgment and determination of the administrative organ's failure to perform the statutory duties according to the law should be based on the statutory duties of the administrative organ as prescribed in the law and take whether the administrative organ has fully applied or exhausted administrative supervision means as prescribed in laws, regulations, and regulatory documents for stopping illegal activities and whether the state interest or public interest has been effectively protected as the standard by comparison with the list of law enforcement power and the list of responsibilities of the administrative organ. Although the administrative organ has adopted some administrative supervision or punishment measures, it failed to fully apply or exhaust administrative supervision means for stopping illegal activities. Where the damage to the state interest or public interest still fails to be effectively corrected, it should be identified that the administrative organ fails to fully perform duties according to the law. | | 对行政机关不依法履行法定职责的判断和认定，应以法律规定的行政机关法定职责为依据，对照行政机关的执法权力清单和责任清单，以是否全面运用或者穷尽法律法规和规范性文件规定的行政监管手段制止违法行为，国家利益或者社会公共利益是否得到了有效保护为标准。行政机关虽然采取了部分行政监管或者处罚措施，但未依法全面运用或者穷尽行政监管手段制止违法行为，国家利益或者社会公共利益受侵害状态没有得到有效纠正的，应认定行政机关不依法全面履职。 |
| [Relevant Legal Provisions] | | 【相关规定】 |
| Paragraph 2 of Article 15 of the Environmental Protection Law of the People's Republic of China | | 《中华人民共和国环境保护法》第十五条第二款 |
| Articles 5, 7, 43, and 99 of the Atmospheric Pollution Prevention and Control Law of the People's Republic of China | | 《中华人民共和国大气污染防治法》第五条、第七条、第四十三条、第九十九条 |
| Article 51 of the Law of the People's Republic of China on Administrative Penalty | | 《中华人民共和国行政处罚法》第五十一条 |
Paragraph 4 of Article 25 of the Administrative Procedure Law of the People's Republic of China
．．．．．． | | 《中华人民共和国行政诉讼法》第二十五条第四款
．．．．．． |
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