In 2016, China Biodiversity Conservation and Green Development Foundation (CBCGDF) noticed that a product was popular on the online market called “Fire Lotus”. It was advertised as a tool that would absorb some of the polluting substances in the vehicle exhaust, so as to help car owners to pass the annual inspection concerning the emission of exhaust.
CBCGDF believed that Shenzhen Sumei Environmental Protection Co., Ltd. (hereinafter referred to as Sumei Company), manufacturer and seller of Fire Lotus, had been helping vehicles whose emission exceeds the standard to pass the inspection, allowing such vehicles to be used without restriction or punishment, which was a serious violation of the law and had very serious impact on the national air pollution prevention and control. In addition, Taobao, as a third-party trading platform, had failed on its responsibility of supervision.
In October 2016, CBCGDF filed an Environmental Public Interest Litigation Case against Sumei Company on the falsification tool for emission inspection. On November 10th, Hangzhou Intermediate People’s Court officially accepted the case.
On the afternoon of September 7, 2018, the case for heard in the first instance by Hangzhou Intermediate People’s Court. CBCGDF requested the court to order Sumei Company, which produced and sold the product, and Taobao, which provided the online sales platform, to apologize on national media and assume joint and several liabilities for the ecological environment. The restoration cost was calculated to be more than RMB 150 million, and Shenzhen Sumei Company must stop producing and selling the product.
Since it was sued, Taobao removed all the products of Sumei Company and similar products of other sellers in the same category off the shelf. However, its lawyer said that the evidence claiming that the products sold by Sumei Company were “illegal” was insufficient. The main supervision obligations of the trading platform were to identity information of the sellers, to remind them beforehand and take specific measures afterwards. While the lawyer of the defendant, Sumei Company, held the opinion that what it sold was not an illegal product, and so far, there had been no cases of punishment caused by using the company’s products.
In June 2019, the Hangzhou Intermediate People’s Court made the first-instance judgment. It stated that Sumei Company should bear joint liabilities with vehicle owners on the grounds that it advertised its three products involved in the case when selling them at Taobao shops, which could evade the annual emission inspection of motor vehicles by resorting to fraud and falsification and abetting or assisting some vehicle owners to commit infringement. In terms of whether Sumei Company should bear the liability of environmental pollution, the court of first instance held that the its behavior in the case constituted damage to the public interest and should bear corresponding liability. The judgment of first instance was as follows: the defendant, Shenzhen Sumei Environmental Protection Co., Ltd., apologizes to the public in national media within 15 days from the date when the judgment came into effect; and within 15 days from the effective date of the judgment, Sumei company pays compensation for air pollution environmental restoration cost calculated at RMB 3,500,000 (the fund is earmarked for air pollution control in China).
After the judgement was announced in the first instance, CBCGDF appealed on the grounds that Zhejiang Taobao Company should bear joint liability. The Higher People’s Court of Zhejiang Province made a second-instance judgment in October 2019, arguing that Zhejiang Taobao Company, as an information platform service provider, did not participate in the trading behavior of member users, and had fulfilled its obligations such as identity review and prior reminder in the process of providing case-related services. And after receiving the complaint of the case, it removed all similar products including the products involved in the case and stopped related platform services. Therefore, the claim by CBCGDF that Zhejiang Taobao Company should bear joint liability lacks factual and legal basis, so the appeal was rejected and the original judgment was upheld.
However, the judgment of the second instance also pointed out that Zhejiang Taobao Company should strengthen the information management of the network platform, establish an effective retrieval and supervision system, effectively perform the legal duties of network operators and service providers, and shoulder more social responsibilities for protecting the environment.
At the beginning of 2020, the environmental public interest litigation case filed by CBCGDF on falsification tool for emission inspection against Sumei Company and Taobao was selected as Top 10 Influential Lawsuits in China of 2019. The selection was jointly conducted by Case Law Research Institute of China Law Society, Judicial Case Academy of the Supreme People’s Court of China, Journal of Law Application, China Law Review, and Southern Weekly.
They selected this case because with the increasing number of motor vehicles, it is more difficult to control air pollution, and the annual inspection of motor vehicle exhaust is arduous. The so-called “annual inspection magic tool” is sold to evade the annual inspection of motor vehicle exhaust through fraud and falsification, abetting or assisting some vehicle owners to commit infringement. The more “popular” this illegal tool product is, the greater the negative effect it will have on air control and annual inspection of automobiles. The case filed by CBCGDF helps to further clarify the responsibility of air pollution in the Internet era and expand the types of environmental public interest litigation.
Writer: Victoria
Checked by Richard
Editor: Victoria
Contact: v10@cbcgdf.org; +8617319454776
Contribution
Do you know? CBCGDF is a non-profit organization. We rely on crowd-funding and donations. You have the opportunity to help us to advance biodiversity conservation. Donate TODAY to power up the movement to make it a better world for all life.