Sun Youhai: The "Shanghai Xinghualou Excessive Packaging" case can consider pursuing punitive damages

On the occasion of the Mid-Autumn Festival, the Legislative Affairs Commission of the China Green Development Council organized and held an online seminar on September 14 on the "Seminar on the Problem of Excessive Packaging of Mooncakes - Shanghai Xinghualou Excessive Packaging Public Interest Litigation Case as an Example", inviting experts in the fields of ecological environmental protection, food and nutrition, consumer rights protection and law to participate in the discussion, the on-site discussion atmosphere was warm, experts generally pointed out that Shanghai Xinghualou Company's illegal excessive packaging harm to the public interest, and expressed great concern about the judgment of the Shanghai Third Intermediate Court. He also put forward opinions and opinions on how to effectively solve the problem of excessive packaging through judicial means. I would like to share the speech of Dean Sun Youhai of tianjin university law school as follows:

First of all, I would like to express my appreciation for the public interest litigation initiated by the China Green Development Council on the issue of excessive packaging. This is also a concrete manifestation of the respect and serious implementation of the Law on the Prevention and Control of Environmental Pollution by Solid Waste and the Law on the Promotion of the Circular Economy.

I would like to comment on the following issues.

First, on the determination of environmental infringement.

There are three points of contention summarized in the judgment of this case, the third of which is "whether the acts of the two defendants constitute environmental infringement", and the issue of conceptual confusion arises here. Although environmental infringement includes two types of environmental infringement in a broad sense, both infringement of environmental interests and infringement of environmental public interest, I believe that in specific cases, special environmental public welfare damage liability should be distinguished from ordinary environmental civil tort liability, and cannot be confused. Only by accurately grasping the type of case can the adjudication be further conducted in accordance with the criteria for determining relevant liability.

Second, it is measured in terms of other elements of responsibility composition.

The first is illegal acts. The court of first instance found that the number of packaging layers of the Apricot Blossom Building-Huayu Mooncake Gift Box was 4 layers, exceeding the 3 floors stipulated in the current Standards. This act of overpackaging the mooncake violates the national mandatory standards, and the extra layer of packaging belongs to solid waste, which violates the Law on the Prevention and Control of Environmental Pollution by Solid Waste. Xinghualou Company did commit illegal acts.

The second is the consequences of damage. The mooncake gift box produced due to excessive packaging not only causes waste of resources, but also has a negative environmental impact on the atmosphere, soil, water and other environments when dealing with these excess packaging, which is beyond doubt. In this case, the number of "over-packaged" mooncake gift boxes produced by Xinghualou Company reached 660 boxes, and they were sent to all parts of the country through online sales channels, causing a relatively large adverse social impact. Although Xinghualou Company argued that the excess packaging it used was recyclable material, this did not mean that the material was degradable and recyclable, and that it would inevitably have a negative impact on the ecological environment during the treatment process. In the long run, the negative effects of over-packaging cannot be ignored.

The third is causality. In the relevant rules of environmental civil public interest litigation, there is no special provision on the burden of proof, and the burden of proof should still be reversed in accordance with the traditional environmental tort rules. According to Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Environmental Tort Liability Dispute Cases, the burden of proof in environmental pollution cases applies to the reversal of the burden of proof, "Where the infringed party requests compensation in accordance with the provisions of Chapter VII of Title VII of the Civil Code, it shall provide evidentiary materials proving the following facts: (1) the infringer discharged pollutants or damaged the ecology; (2) the damage of the infringed party; (3) the pollutants discharged by the infringer or secondary pollutants, There is a correlation between ecological destruction and damage. In other words, the plaintiff only needs to give preliminary evidence of the illegal act, the consequences of the damage and the correlation between the two.

In this case, the Green Development Council has submitted evidence to prove that the defendant's excessive packaging violated the national mandatory standards, as well as the adverse environmental impact caused by the large scale of production and wide sales scope of the mooncakes involved in the Xinghualou case, and there is a strong correlation between the two. The behavior of "excessive packaging" will inevitably increase the ecological environmental pollutants, and the ecological environmental pollutants will lead to ecological environmental pollution, and this correlation can be considered to have reached a high degree of certainty. Article 1230 of the Civil Code clearly stipulates that "in the event of a dispute arising from pollution of the environment or damage to the ecology, the actor shall bear the burden of proof for the circumstances of non-responsibility or mitigation of liability prescribed by law and the absence of causality between the act and the damage".

The fourth is the subjective state of the actor. This consideration is also necessary.

In view of the particularity of the field of ecological environmental protection, there is no need to consider the subjective state of the defendant in the determination of general environmental tort liability, that is, the principle of no-fault liability is implemented. Article 1229 of the Civil Code stipulates that "where damage to others is caused by polluting the environment or damaging the ecology, the infringer shall bear tort liability." ", without regard to whether the perpetrator is at fault. That is to say, as long as the above three elements are met, the environmental damage liability of Xinghualou Company can be determined.

However, I refer to this element in the view that the punitive liability of the defendant should be requested when the conditions are met. Punitive compensation liability is a form of civil liability with the highest degree of severity, for acts of damage with subjective intent and serious consequences, it has the functions of deterrence and prevention, and in practice, local people's courts have made judgments containing punitive liability in accordance with article 1232 of the Civil Code, and have achieved good results.

In this case, according to the facts investigated by the Green Development Council, it can be found that Xinghualou Company continues to overpack, knowing that the relevant provisions of the current Standards. Xinghualou Company is one of the drafting units of GB/T 19855-2015 "MoonCake", that is, the national standard (recommended) of mooncake, and the national standard (recommended) of the mooncake clearly states that the packaging and production of the mooncake should comply with the "provisions of GB 23350", and the current "Standard" is also one of the normative citation documents of the national standard (recommended) of the mooncake. If this act is confirmed, it can be found that Xinghualou Company has the subjective intention to violate the law, that is, knowingly committing the crime, combined with the further proof of other conditions for determining punitive compensation liability, such as "violating the provisions of the law" and "causing serious consequences", and may consider pursuing its punitive compensation liability.

In summary, I believe that if this case can be correctly adjudicated, it will surely achieve a good social demonstration effect. In the case of the increasing problem of excessive packaging, the state has issued a number of laws such as the Law on the Prevention and Control of Environmental Pollution by Solid Waste, the Law on the Promotion of Circular Economy and other environmental pollution prevention and control laws, which can become the normative basis for solving the problem of excessive packaging. In this context, the China Green Development Council actively filed an environmental public interest lawsuit in order to solve the problem of excessive packaging, which is an act of justice and hopes to arouse the high attention of the people's courts.

Well, that concludes my remarks, thank you.

Finishing/Cherry Review/Tammy

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