The "Environmental Protection Law" is also applicable indoors. A shopping mall in Hebei province was sentenced to 1.4 million yuan for setting up a smoking room
2021/7/23 17:23:00 本站

Recently, the country's first public interest lawsuit against smoking control in an indoor public place was won. The shopping mall involved was sentenced to compensation for environmental restoration costs and service function losses of 1.4 million yuan for setting up smoking rooms indoors.


The lawsuit was jointly filed by the CBCGDF (China Biodiversity Conservation and Green Development Foundation) and the Xinxiang Environmental Protection Volunteer Association.


Attorney Zhong Lanan, a senior partner of Beijing Jingshi Law Firm and a member of the Public Welfare Law Committee of the China Smoking Control Association, who represented the "The first case of Normal Speed Train Smoke-free Litigation", believes that the Baoding Intermediate People's Court made the country's first indoor public place smoking control case The judgment has made new breakthroughs in the field of smoking control at the legal level, and also provided judicial reference for future smoking control work.


The country's first indoor public place smoking control case.


At the beginning of 2018, some parents reported that in a children's themed mall in Yanjiao, Hebei, there were many maternity rooms adjacent to smoking rooms, causing health damage to minors and pregnant women outside smoking. According to the investigation and verification by the CBCGDF, the manager of the mall has 18 similar malls across the country.


To this end, the CBCGDF and the Xinxiang Environmental Protection Volunteer Association have established AEON Mall (Sanhe) Business Management Co., Ltd., AEON (China) Investment Co., Ltd., AEON Mall (China) Business Management Co., Ltd. (below) (Known as "AEON Company") sued the Baoding Intermediate People's Court and filed the country's first public interest lawsuit against smoking control in indoor public places.


The "Indictment" made a total of six claims, including requiring the mall to immediately remove all its smoking rooms and smoking room indication signs in all malls in China, and to compensate for the loss of service functions during the period from damage to the mall environment when it is restored to its original state. On May 15, 2019, the case was formally filed in Baoding Intermediate People's Court.


On July 21, the Comprehensive Department of the CBCGDF received the first-instance civil judgment of the China Green Development Council v. AEON Company for the civil public interest litigation of the indoor smoking control environmental pollution liability dispute sent by the Baoding Intermediate People's Court. The court held that the litigation request of the CBCGDF and the Xinxiang Environmental Protection Volunteer Association was partially established and supported.


According to the judgment, the defendant, AEON, should pay 1.4 million yuan to the ecological environment damage compensation account designated by the court within fifteen days from the effective date of the judgment. The court also demanded that the defendant AEON Company apologize to the public in the state-level media and the provincial-level media in Hebei Province within 15 days from the effective date of the judgment.


The "Environmental Protection Law" is also applicable to the indoor environment, and smoking rooms infringe the public health rights.


Prior to this, both parties had disputes over whether the case was an environmental public interest litigation. Article 2 of the "Environmental Protection Law of the People's Republic of China" stipulates that the environment not only includes various natural factors that affect the survival and development of human beings, but also includes natural factors that are artificially modified. The two are a unified whole. AEON believes that environmental pollution actions refer to acts of destroying the natural and ecological environment, and infringement disputes caused by indoor air problems are not environmental pollution disputes.


The court ruled that indoor public places are relatively closed, and air conditioning is often carried out through ventilation, air conditioning and other equipment. The indoor air elements are natural factors that have been artificially modified. At the same time, the air quality is not simply affected by individuals. It is an unspecified majority, so indoor air in public places conforms to the concept of environment stipulated by the above-mentioned laws.


"The judgment confirms that the indoor air environment in public places belongs to'natural factors after artificial transformation' and is one of the objects regulated by the Environmental Protection Law. This is a major legal breakthrough in this case." Ma Yong, Deputy Secretary-General told the Beijing News reporter that in addition, smoking causes air pollution to cause damage to human health, which has become a regulatory content of environmental infringement, breaking through the previous recognition that "air pollution often results from industrial emissions".


"The court confirmed that the indoor environment is also an environmental public interest lawsuit. The reason is that the indoor environment involves the public's right to health." Zhong Lanan told reporters.


The "Report on Health Hazards of Smoking in China" issued by the former Ministry of Health elaborated on the health hazards of second-hand smoke (environmental smoking smoke) exposure, and specifically pointed out the hazards to special populations such as pregnant women and children. Therefore, the court held that even if the door of the smoking room is automatically closed, it cannot ensure that the door can completely avoid the escape of smoking smoke during the opening and closing process. “The establishment of an indoor smoking room in the shopping mall involved in the case inevitably affects the indoor air quality and the public body. Health has caused harm and health risks."


Zhang Jianshu, president of the Beijing Smoking Control Association, said that a large amount of scientific evidence shows that it is impossible to set up smoking rooms indoors to isolate the hazards of second-hand smoke. "This case actually broke the false proposition that setting up indoor smoking rooms can isolate the hazards of second-hand smoke. "


Experience of "Hebei Smoking Control Case": Focusing on Units, Not Individuals


After winning the case, the CBCGDF stated that it hopes to further realize a total ban on smoking in indoor public places in the country. “This is a requirement of the World Health Organization’s Framework Convention on Smoking Control. This means that neither smoking in public places nor in public places is allowed. Place any form of smoking room or smoking area."


The "Framework Convention on Smoking Control" was approved by the WHO in 2003 and aims to promote extensive international cooperation to control the smoking epidemic. China formally signed the convention in November 2003, and it came into effect in January 2006. The "Convention" stipulates that contracting states should achieve the goal of being smoke-free in indoor public places, workplaces and public transportation through legislative, administrative or other means within the scope of existing national jurisdiction.


In 2014, Beijing passed the "Beijing Regulations on Smoking Control", which included public places, indoor areas of workplaces, and public transportation into the ban on smoking. Zhang Jianshu analyzed at the seminar of “The First Case of Environmental Public Interest Litigation in Indoor Public Places (Smoking Control)” held in 2019, Beijing’s punishment for smoking control is “emphasis on the unit and despise the individual” because personal actions are particularly short-lived and it is not easy to hold them accountable. The shops are relatively fixed and easier to pursue accountability. "So most of the punishments for smoking control in Beijing are shops."


"Including this case of smoking control in indoor public places, the defendant is the unit. I think this is right." Zhang Jianshu said that this will make this public interest litigation effective.


“Due to the inconsistency of smoking control laws, the legal consequences of the same actions vary from place to place, and it is impossible to use legal methods to properly guide people’s actions.” Zhong Lan’an analyzed that there are toilets and corridors in many places across the country as “smoking”. Serious public health problems. Because many places have not formulated relevant smoking control regulations or have no basis for penalizing such behaviors, and lack of national laws, it is difficult to eliminate these chronic social diseases.


It is understood that my country’s nationwide smoking control legislation has been brewing since at least 2007, and public comments were solicited in 2014, but it has not been implemented so far. On July 16 this year, Mao Qun'an, Director of the Planning Department of the National Health Commission, said that he is actively promoting national-level smoking control legislation.


Writer: Hu Xianhe, New Beijing News trainee reporter

Translator: Luke Chen

Original Chinese website: https://m.bjnews.com.cn/detail/162695898414237.html


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