In Depth: China Drafts Debut Legislation for Public Interest Litigation

China is moving to introduce new legislation aimed at strengthening the legal framework for prosecuting public interest cases, such as those involving environmental pollution, food safety, and data privacy breaches. The current system, which has evolved over the last decade, placed prosecutors at the forefront of public interest litigation (PIL) but was hampered by a lack of comprehensive legislation. Instead, prosecutors relied on piecemeal provisions scattered across existing laws, leading to inefficiencies and, at times, overreach. This often allowed responsible government agencies to avoid taking necessary action, as prosecutors filled the resulting enforcement gaps [para. 1][para. 2].

Responding to these challenges, a draft law on procuratorial public interest litigation was published in late October on the National People’s Congress (NPC) website and is available for public comment until November 26. The draft has sparked widespread discussion, particularly regarding clauses that prevent prosecutors from interfering with the responsibilities of government agencies, and those that prioritize nonprofit organizations (NGOs) in initiating cases in fields like environmental protection [para. 3].

The focus on PIL has roots in a 2012 revision of the Civil Procedure Law, which first allowed “legally prescribed organs and relevant organizations” to file lawsuits in cases of harm to the public interest. This change was prompted by a growing number of environmental and safety scandals—a trend that made it difficult to identify who had the legal standing to sue in defense of the broader public [para. 4]. A pilot project in 2015 enabled the Supreme People’s Procuratorate (SPP) to authorize PIL trials in 13 provincial-level regions, culminating in the formal adoption of the PIL system in 2017 [para. 5].

Despite having handled hundreds of thousands of cases since then, the current practice has exposed significant shortcomings. In 2023, China’s top court and procuratorate called for targeted legislation to address gaps, such as the lack of detailed operational guidelines, clear investigatory powers, and mechanisms for inter-agency collaboration—critical elements for effective PIL, particularly in environmental restoration. That same year, lawmakers made PIL legislation a top priority, and the new draft law aims to enhance both the quality and efficiency of prosecutions, bolstering protection for national and social interests [para. 6][para. 7].

The draft law seeks to balance the empowerment and regulation of prosecutors by identifying 15 fields in which they can act—including environment, food safety, state property, data protection, and anti-monopoly—and setting clear criteria for opening cases. Prosecutors must have preliminary evidence of harm and of an agency’s failure or misconduct, and are required to first issue a “procuratorial opinion” to the relevant agency, with pre-litigation warnings being given a stronger legal force than before. The draft clarifies the prosecutor’s investigative authority, while barring coercive actions, such as detaining individuals or freezing assets [para. 8][para. 9][para. 10][para. 11].

The law also addresses prosecutorial overreach by explicitly prohibiting interference with governmental responsibilities, a response to notable excesses, such as flawed investigations into primary school textbooks [para. 12]. Experts and academics suggest that clearer boundaries and compliance checklists are necessary to delineate responsibilities between prosecutors and administrative agencies [para. 13].

The draft upholds the principle that qualified nonprofit organizations have priority in bringing cases, allowing them a 30-day window before prosecutors can intervene [para. 14][para. 15]. Supporters of this arrangement cite nonprofits’ expertise and impact, referencing landmark cases like a high-profile 160 million yuan ($22.5 million) pollution lawsuit and cases against desert contamination [para. 16][para. 17]. Nonetheless, some legal scholars advocate for a system of parallel standing or co-litigation to prevent delays and enhance access to justice when both prosecutors and nonprofits seek to initiate litigation simultaneously [para. 18][para. 19].

This pending legislation, therefore, represents a significant evolution in China’s legal approach to public interest protection, aiming to create clearer procedures, proper balance of power, and more effective enforcement [para. 3][para. 7][para. 13][para. 19].