On September 14, before the Mid-Autumn Festival, the Research Department of China Biodiversity Conservation and Green Developement Foundation has organized an online seminar on Over-packaging of mooncakes——the case of ShangXinghua Lou in Shanghai. Experts from ecological protection, food and nutrition, consumer protection and law were invited to join the discussion. At the seminar, Cao Mingde, professor from the China University of Political Science and Law has delivered a speech.
Professor Cao shared his opinions about the judgement of the first instance on the five motions.
First motion requires the two defendants to immediately stop polluting the environment by stop producing and selling mooncakes which package do not meet the standards.
The judgement of the court is inappropriate for the first motion is headed to the future, meaning to stop producing and selling since the judgement came into effect., not just referring to 2020.
Second motion requires the two defendants to immediately recall the mooncakes on the market which package do not meet the standards. The judgement is partly correct for the court believe the best-before day of those mooncakes too close to sell on the market. This is obscure factual judgement.
Third motion is also the core of this judgement. The plaintiff requested the original defendant to repair the pollution damage to the environment and pay the fees. The court ruled that over-packaging does not violate the environment. While it is a mistaken identity. whether pollutants cause environmental damage? The solid waste generated by excessive packaging increased the total amount of domestic waste, but the court was wrong to hold that this solid waste was not equivalent to pollutants (page 14 of the judgment of the first instance).We know that solid waste is included in the traditional four major pollutants, and it is a very serious type of pollutant we have today. In big cities, especially first-tier cities like Beijing, have long been surrounded by garbage. There is no doubt that solid waste is a pollutant, so it is an important question whether the discharge of solid waste causes environmental damage. What is the basis for determining this issue? Like the atmosphere, water, noise, soil and other pollution whether to cause damage, an important criterion for judgment is the pollutant emission standards. Then the excessive packaging of solid waste caused by whether environmental infringement or ecological damage, this issue is indeed worth exploring. But my basic view is that exceed the standard can be regarded as a criterion or basis for pollution. Because we see from the environmental law enforcement, as long as enterprises, organizations, individuals exceed the standard emissions that constitute environmental pollution, but also constitute an administrative violation of the standard of judgment. But whether it causes civil damage? In terms of environmental damage, the general theory is that even if the emission standards are met, it may cause environmental damage. Now the question is if the emission exceeds the standard, does it necessarily lead to damage? My view is that we should take exceeding the emission standards as the basis or standard for judging environmental pollution and causing damage. Therefore, I think that the court of first instance was wrong in ruling that "the solids are not pollutants and therefore no environmental damage has been caused in this case".
Fourth motion is apologize. Although the plaintiff's lawsuit request is based on the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations, I do not support this public apology lawsuit request, because the case did not cause damage to personal interests. The plaintiff's request for the court to make the defendant make a public apology in the media is actually a punishment. Civil law should function as repair damage rather than punish the defendant.
Fifth motion is about fees of lawyers and litigation. The court accepted that the two defendants shouldered part of the costs on a voluntary basis, but in general I think it did not fully respect the work of the public interest litigation lawyers. Lawyers are a highly paid profession in most countries, and the cost of education and training is also very high. so the 30,000 yuan fee is obviously lower than the fee for a similarly difficult case, and the decision lacks reasonableness.
Original Chinese article: https://mp.weixin.qq.com/s/A1CmrnC59IjeYI9Vv3sThA
Translator/Daisy
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