The Supreme Ministry of Inspection and Water Resources jointly issued a typical case of cooperation between procuratorial supervision and water administrative law enforcement to protect the water safe
CCTV News:According to the website of the Supreme People’s Procuratorate, on the morning of April 12th, the first national strategic procuratorial forum on service guarantee of the Yellow River was held in Zhengzhou. At the meeting, the Supreme People’s Procuratorate and the Ministry of Water Resources jointly issued a typical case of procuratorial supervision and water administrative law enforcement to protect the water safety of the Yellow River, which reflected the practical results of joint protection and coordinated promotion of great governance.
The typical cases released this time include 11 administrative public interest litigation cases in which the Procuratorate of Jianzha County of Qinghai Province urged to protect the ecological environment of the Yellow River Basin, including 2 criminal prosecution cases and 9 public interest litigation cases.
According to the person in charge of the Supreme People’s Procuratorate, the case thoroughly implements the requirements of "focusing on protection and governance", focusing on issues in the Yellow River water security field such as flood control safety, water resources protection, beach management, water ecological restoration, soil and water conservation, and severely punishing illegal sand mining and other behaviors that seriously endanger the ecology and river regime stability of the Yellow River Basin, forming a shock of the rule of law and providing legal guarantee for the ecological protection and high-quality development of the basin.
This time, there are 8 typical cases of administrative public interest litigation, all of which promote problem solving before litigation. For example, the Hongyuan County Procuratorate of Sichuan Province put forward procuratorial suggestions according to law to urge the administrative organs to repair the damaged river embankment in time, in view of the fact that the river channel is blocked and the flood safety is affected. Procuratorial organs adhere to the supervision concept of "realizing the purpose of protecting public interests before litigation is the best judicial state", give full play to the procedural advantages such as pre-litigation consultation and procuratorial suggestions, and promote the administrative organs to correct their own mistakes and administer according to law.
The management of rivers and lakes involves many departments, a wide range of fields, complicated reasons and difficult work. Procuratorial organs focus on the overlapping responsibilities of multiple departments and the difficulty of coordination and handling, and give play to the synergistic role of administrative public interest litigation to promote all parties to implement their duties. The case released this time shows that the procuratorial organs and water conservancy departments rely on the mechanism of "River Chief+Procurator-General" to find out the protection and governance problems of the Yellow River in time and perform their duties in coordination to protect national interests and social public interests. For example, the Henan Provincial Procuratorate, in view of the cross-provincial Upright’s encroachment on the main channel of the Yellow River, conducted vertical integrated command and horizontal coordination, and pushed all nine groups of Upright to be hauled ashore, and all 3,300 tons of steel were cleared up, thus effectively solving the hidden danger of flood discharge.
A typical case of cooperation between procuratorial supervision and water administrative law enforcement to protect the water safety of the Yellow River
catalogue
1. The People’s Procuratorate of Jianzha County, Qinghai Province urged to protect the ecological environment of the Yellow River Basin in administrative public interest litigation series.
2. The People’s Procuratorate of Hongyuan County, Sichuan Province urged the restoration of the Yellow River embankment.
3. The People’s Procuratorate of Jingtai County, Gansu Province urged the protection of the Songshanshui Shahe River administrative public interest litigation case.
4. The People’s Procuratorate of jinfeng district City, Yinchuan City, Ningxia Hui Autonomous Region urged and standardized the administrative public interest litigation series of precipitation management in construction projects.
5. The People’s Procuratorate of Baotou City, Inner Mongolia Autonomous Region urged the rectification of over-exploitation and illegal access to the Yellow River water administrative public interest litigation case.
6. The People’s Procuratorate of Xinzhou City, Shanxi Province urged the protection of groundwater resources for administrative public interest litigation.
7. The People’s Procuratorate of Dingbian County, Shaanxi Province urged the protection of water resources administrative public interest litigation series.
8. The criminal prosecution case of Yao Mouqiang, lingbao city, Henan Province, illegally stealing river sand from a tributary of the Yellow River.
9. The procuratorial organ of Henan Province urged and rectified the administrative public interest litigation case of Upright encroaching on the main stream of the Yellow River across provinces.
10. The criminal incidental civil public interest litigation case of Wang Moujie and Wang Moucun in Yuncheng County, Shandong Province, who illegally exploited the Yellow River sand.
11. Dongping County People’s Procuratorate of Shandong Province urged and rectified the administrative public interest litigation case of farms in the Yellow River beach area.
People’s Procuratorate of Jainca County, Qinghai Province urges protection.Series cases of administrative public interest litigation on ecological environment in the Yellow River basin
[Keywords:]
Pre-litigation procedure of administrative public interest litigation River protection flood safety
【 gist 】
In view of the fact that a number of administrative organs failed to perform their supervisory duties in a timely and comprehensive manner according to law, resulting in the illegal construction near the river affecting the ecological environment and flood safety of the Yellow River, the procuratorial organs can respectively put forward procuratorial suggestions to the relevant administrative organs, urge them to perform their duties according to law, and ensure the flood safety and ecological environment of the river are protected.
[Basic case]
Since November 2018, a professional planting cooperative in Jianzha County, Huangnan Tibetan Autonomous Prefecture, Qinghai Province has illegally occupied 45 mu of muddy beach in Kangyang Town, 10 meters away from the west bank of the main stream of the Yellow River. Without going through the examination and approval procedures such as water intake permit and environmental impact assessment, 23 PC-board multi-span greenhouses have been built without authorization for vegetable planting, and five of them have occupied the main stream of the Yellow River. Its behavior violates the environmental protection law, water law, flood control law and other relevant laws and regulations, causing great pollution risks to the ecological environment of the main stream of the Yellow River and seriously endangering the flood safety of the main stream of the Yellow River. In this regard, a number of administrative organs have failed to perform their duties of supervision and management.
【 Investigate and supervise the performance of duties 】
On June 10, 2022, the People’s Procuratorate of Jianzha County (hereinafter referred to as the Procuratorate of Jianzha County) found that a professional planting cooperative violated laws and regulations such as water river management and land management, and built a multi-span greenhouse beside the main stream of the Yellow River without authorization. On June 28 of the same year, the hospital initiated the procedure of filing administrative public interest litigation, launched an investigation, conducted on-the-spot investigation, and fixed evidence by aerial photography of drones to verify the damage to public welfare and the failure of relevant administrative organs to perform their duties according to law.
On July 2 of the same year, the Jianzha County Procuratorate put forward the pre-litigation procuratorial proposal according to law, urging the water conservancy department to perform the duty of flood control on the water channel of the main stream of the Yellow River according to law, urging the natural resources department to strengthen the daily supervision of illegal and disorderly construction such as building greenhouses without authorization, urging the agriculture, animal husbandry and science and technology departments to strengthen the supervision and inspection of the land used on the beaches of the Yellow River, urging the ecological environment department to do a good job in pollution prevention and ecological environment protection in the Yellow River basin, and urging the town people’s government to implement the responsibility of territorial supervision and timely remove obstacles to flood in the river channel. At the same time, the above-mentioned administrative organs are urged to clarify their respective regulatory responsibilities, clarify the division of tasks, perform their duties in coordination, clean up and dismantle illegally built greenhouses according to law, and promptly eliminate potential flood safety hazards in the main stream of the Yellow River.
After receiving the procuratorial suggestions, the above-mentioned units set up a rectification leading group in time and held a joint meeting of departments to jointly study and formulate rectification plans. The county’s long-term office of rivers and lakes issued a reminder notice and a notice to the county agriculture, animal husbandry, science and technology bureau and other units to dismantle the illegal river-related greenhouses within a time limit, and conducted special research and deployment on issues such as dismantling the river-related greenhouses and eliminating the hidden dangers of flooding in the Yellow River trunk. He has interviewed the offenders six times, carefully explained the law and organized joint law enforcement. On August 30 of the same year, a professional planting cooperative demolished all 23 illegal river-related greenhouses, promptly eliminated the hidden dangers of flood discharge in the main stream of the Yellow River, and timely and effectively protected public interests.
[Typical meaning]
To promote the ecological protection and high-quality development of the Yellow River, we must jointly do a good job in great protection and jointly promote great governance. In accordance with the relevant laws and regulations, the procuratorial organ filed an administrative public interest lawsuit in accordance with the law in view of the illegal construction of 23 river-related greenhouses by a professional planting cooperative, put forward procuratorial suggestions before litigation in time, and simultaneously urged several administrative organs to earnestly fulfill their main responsibilities of maintaining the flood safety of the Yellow River trunk. By urging the relevant administrative organs to jointly manage, coordinate and manage, deepen coordination and cooperation, and unite collaborative efforts, the problem of public welfare damage has been solved together.
The People’s Procuratorate of Hongyuan County, Sichuan Province urged the restoration of the Yellow River embankment.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation "River Chief+Procurator-General" cooperation mechanism for dike repair and river safety
【 gist 】
In view of the water environment pollution caused by the damage of dikes on the Yellow River and the problems affecting the safety of river flood discharge, procuratorial organs can urge administrative organs to fully perform their duties according to law, repair damaged dikes, and ensure the safety of water projects and the lives and property of people around them.
[Basic case]
Baihe River is an important tributary of the upper reaches of the Yellow River. It originates from Chaleken, the eastern foot of bayan har, Hongyuan County, Sichuan Province, and flows through Tangke Town, ruoergai county City, Sichuan Province and then flows into the Yellow River, with a drainage area of 5,488 square kilometers. About 360 meters of the main stream of Baihe River (Longrang Bridge section of Binhe Road, Hongyuan County) has collapsed, and many dikes and guardrails have been damaged to varying degrees. The relevant administrative organs failed to perform their management and protection duties in time, resulting in the long-term scouring of the river, which gradually moved the coastline back and eroded the Yellow River wetland. At the same time, the damaged dikes and the remnants of dike guardrails are scattered on the river course and coastline, which not only blocks the river course and endangers the safety of flood discharge, but also may cause water pollution in the main stream of Baihe River.
【 Investigate and supervise the performance of duties 】
In May, 2022, the People’s Procuratorate of Hongyuan County, Sichuan Province (hereinafter referred to as Hongyuan County Procuratorate) found clues about the damage of Baihe Dike by relying on the mechanism of "He Chang+Procurator-General". On May 9, 2022, Hongyuan County Procuratorate filed an administrative public interest lawsuit against Hongyuan County Water Affairs Bureau (hereinafter referred to as County Water Affairs Bureau). Hongyuan County Procuratorate investigates and collects evidence through field investigation, water quality testing, drone mapping, consulting and obtaining documentary evidence, visiting and asking the staff of relevant administrative organs and the surrounding people. It is found that the county water affairs bureau has the responsibility of strengthening the safety of dams and dikes according to law, but it failed to perform its supervision and management duties on the damage of dikes and guardrails in the main stream of Baihe River in time, which adversely affected the water environment and flood safety of Baihe River. On May 12, 2022, Hongyuan County Procuratorate issued a pre-litigation procuratorial proposal to the County Water Affairs Bureau, suggesting that it fully perform its duties of river management and ensuring the safety of dams and dikes in accordance with the law, repair the collapsed and damaged dikes involved in the case, clean up the remnants of dike guardrails scattered along the river and coastline as soon as possible, and carry out overall investigation and repair on the current situation of dikes in the whole basin to protect the safety of hydraulic projects in Baihe Basin.
After receiving the procuratorial suggestions, the county water affairs bureau immediately set up a work leading group to conduct a comprehensive investigation on the present situation of dikes in Baihe River Basin of the county. Establish ledgers for breakdowns and missing of dikes and guardrails, classify and summarize them, implement rectification and cancellation management, and establish and improve a long-term mechanism for dike maintenance. After on-site investigation and review by the County Water Affairs Bureau, in addition to the 360-meter embankment of Longrang Bridge section of Binhe Road mentioned in the procuratorial proposal, it is also found that the 350-meter embankment near the county industrial park needs foundation and panel maintenance. The county water affairs bureau will include the two embankments that need to be repaired in the new flood control project in 2022, and promote them together with other dike repair and flood control projects in the county. On July 10, 2022, the County Water Affairs Bureau made a written reply to the Hongyuan County Procuratorate on the above rectification. The Hongyuan County Procuratorate and the County River Chief Office have repeatedly followed up and verified that the damaged dikes and guardrails in the Longrang Bridge section of Binhe Road and the industrial park section have been fully repaired. The Hongyuan County Procuratorate decided to close the case on August 1, 2022.
[Typical meaning]
The procuratorial organ and the office of the river chief system focus on the damage of dikes and guardrails in the Baihe River Basin, an important tributary of the Yellow River, and cooperate with each other to effectively solve the problem on the basis of giving full play to their respective functions. The two sides continue to strengthen the cooperation between water administrative law enforcement and procuratorial public interest litigation, adhere to the problem orientation, and promote the restoration and long-term management of dike protection system in the whole Baihe River Basin, effectively protect the safety of hydraulic projects and flood discharge in rivers, and protect the lives and property of people around Baihe River.
The People’s Procuratorate of Jingtai County, Gansu Province urged the protection of Songshanshui Shahe River.
[Keywords:]
Administrative public interest litigation encroaches on the river procuratorial hearing and withdraws the prosecution after performing its duties and rectification.
【 gist 】
After being urged by the procuratorial suggestions before litigation, if the administrative organ fails to perform its duties comprehensively and fully, the procuratorial organ shall file an administrative public interest lawsuit according to law. In the process of hearing a case, if the administrative organ fully performs its duties according to law, it can evaluate the rectification effect through the procuratorial hearing. If it meets the requirements, the procuratorial organ may decide to withdraw the prosecution.
[Basic case]
Jingtai county, Gansu province is located in the hinterland of Gansu province, at the junction of Gansu, Ningxia and Mongolia provinces, and in the transitional zone between the loess plateau and Tengger desert, with fragile ecological environment. The Yellow River is the only transit water system in Jingtai County, and the Songshanshui Shahe River is a secondary tributary of the Yellow River. Since 2018, a concentrator in Jingtai County, Gansu Province has cooperated with a sandstone building material company in Gansu Province to mine and operate sandstone in the Shahe River of Songshan River. During the mining process, waste materials are randomly piled up and sand pits are not backfilled in time. At the same time, the sand washing equipment of the second enterprise occupied the river for a long time, and discharged the sludge from the sedimentation tank of the sand factory into the Shahe River of Songshan River without authorization, which led to the long-term occupation of the river, seriously damaging the river and endangering the safety of flood discharge. Although Jingtai County Water Affairs Bureau has carried out rectification for many times, the second enterprise still illegally produces and operates and occupies the river course, and the social and public interests continue to be infringed.
【 Investigate and supervise the performance of duties 】
In October 2021, the People’s Procuratorate of Jingtai County, Gansu Province (hereinafter referred to as Jingtai County Procuratorate) and the Hechang System Office of Jingtai County discovered the clues of this case and conducted an investigation during the special inspection of "Join hands to clean up the four chaos and protect the mother river". Jingtai County Procuratorate filed a case with Jingtai County Water Affairs Bureau on November 29th, 2021. After field investigation, I visited water affairs, local township government and other departments, collected administrative law enforcement materials, and asked the legal representative of the company involved, and found that Jingtai County Water Affairs Bureau had made a decision on administrative punishment for the second company. However, in the absence of self-rectification by the Second Company, the Bureau failed to take further measures to dismantle the sand washing facilities and equipment encroaching on the river in accordance with Article 65 of the People’s Republic of China (PRC) Water Law and other relevant provisions, resulting in continuous infringement of social and public interests. On December 17th of the same year, Jingtai County Procuratorate put forward the pre-litigation procuratorial proposal, urging it to order Company II to correct its illegal behavior, dismantle the sand washing equipment in the river within a time limit, promptly remove the waste residue, waste materials and silt that are littered, dredge the river and backfill the sand pit.
Jingtai County Water Affairs Bureau replied to the procuratorial organ in writing on December 30, 2021, saying that most of the problems had been rectified. After two field visits, Jingtai County Procuratorate found that the sand and waste materials piled up in the Shahe River of Songshan River were not completely removed, the sand pit was not completely backfilled, the river course was not leveled and leveled, and the sand washing equipment was not moved. Although Jingtai County Water Affairs Bureau has taken some measures to perform its duties, its duties are still incomplete and insufficient, and public welfare is in a state of continuous infringement.
[Proceedings]
Jingtai County Procuratorate brought an administrative public interest lawsuit to Baiyin District People’s Court in accordance with the centralized jurisdiction of ecological environment and resource protection cases in Gansu Province. It is requested to order the Jingtai County Water Affairs Bureau to perform the supervisory duties of protecting the Songshan River and Shahe River in accordance with the law, and effectively protect the public interests.
After the prosecution, Jingtai County Water Affairs Bureau actively performed its duties in an all-round way, requiring the enterprises involved to immediately carry out rectification work in accordance with the formulated river ecological environment restoration and management plan. The enterprise involved in the case dismantled three sand washing production lines, backfilled two water storage sedimentation tanks, and removed more than 270,000 cubic meters of waste slag, all of which were used for backfilling and restoring sand pits, and the Shahe River in Songshan River has been basically dredged. On May 25, 2022, Jingtai County Procuratorate inspected the site and found that the problems were basically rectified.
During the trial of the case, because the defendant has fully performed his duties according to law, relevant issues have been rectified. In order to comprehensively and objectively evaluate the rectification effect, Jingtai County Procuratorate organized a hearing, in which some NPC deputies, people’s supervisors, representatives of water affairs, natural resources, township governments and enterprises involved participated. At the hearing, the administrative organ introduced the performance of their duties, and broadcast video materials before and after the rectification. The enterprises involved stated that they would regulate their operations according to law in the future, and all parties fully expressed their opinions. The hearing officer evaluated the rectification effect and affirmed the rectification effect of the administrative organ. After on-the-spot inspection and hearing evaluation of the rectification effect, Jingtai County Procuratorate believes that the purpose of administrative public interest litigation has been achieved and decided to withdraw the prosecution.
[Typical meaning]
The Yellow River channel is an important part of the Yellow River ecosystem, and the smooth channel is related to flood control, water supply and ecological security. In this case, the procuratorial organ promptly put forward procuratorial suggestions to the administrative organ in accordance with the law to solve the problems of disorderly arrangement, indiscriminate mining, disorderly piling and disorderly construction of sand mining enterprises, and urged them to rectify. After being urged by the pre-litigation procedure, the administrative organs still perform their duties incompletely and inadequately. The procuratorial organs have further strengthened their supervision by filing administrative public interest litigation according to law, effectively promoted the administrative organs to perform their duties in an all-round way according to law, urged enterprises to set up rectification, eliminated the hidden dangers of flood discharge, and ensured the smooth flow of the Yellow River. Procuratorial organs promote protection by supervision, governance by handling cases, and strengthen ecological judicial protection in the upper reaches of the Yellow River, which highlights the procuratorial responsibility and actions of serving the national strategy of ensuring ecological protection and high-quality development in the Yellow River Basin.
The People’s Procuratorate of jinfeng district City, Yinchuan City, Ningxia Hui Autonomous Region urged and standardized the administrative public interest litigation series of precipitation management in construction projects.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation Suggestions on the revision of local legislation for the protection of groundwater resources and state-owned property.
【 gist 】
In view of the waste of groundwater resources and the loss of state-owned property caused by the construction unit in the process of dewatering, the procuratorial organ may put forward procuratorial suggestions to the relevant administrative organs, urge them to perform their duties in coordination, and protect the damaged public welfare in time. At the same time, the procuratorial organ can put forward suggestions for amending the law to the legislature in view of the lack of system found in handling cases.
[Basic case]
During the period of 2019-2020, the illegal use of groundwater was common in the construction projects in xingqing district, jinfeng district and Xixia districts of Yinchuan City during the process of dewatering. In the process of water intake, some construction units violated the water law, regulations on river management, regulations on water intake permit and water resource fee collection and management, and expanded the pilot implementation measures of water resource tax reform. They did not apply for water intake permit, did not install water metering facilities, did not pay water resource tax according to the actual water intake, and discharged construction precipitation into the river without approval. At the same time, some construction units also violated the regulations on urban drainage and sewage treatment, the measures for the administration of urban sewage discharge into the drainage pipe network, etc., and discharged the construction precipitation into the municipal pipe network without applying for the permit for urban sewage discharge into the drainage pipe network, and did not pay the sewage treatment fee according to the actual displacement. In this regard, the relevant administrative organs did not fully perform their supervisory duties according to law, resulting in the waste of groundwater resources and the loss of state-owned property, resulting in damage to national interests and social public interests.
【 Investigate and supervise the performance of duties 】
In December, 2020, the People’s Procuratorate of jinfeng district City, Yinchuan City, Ningxia Hui Autonomous Region (hereinafter referred to as jinfeng district Procuratorate) found clues to this case during the special supervision of construction precipitation in the construction field. Because it involves many jurisdictions in Yinchuan, in March 2021, after asking the Yinchuan Municipal People’s Procuratorate for instructions, the Yinchuan Municipal People’s Procuratorate submitted the case to the jinfeng district Procuratorate for filing. The procuratorial organs found that during 2019-2020, a total of 129 construction projects in xingqing district, jinfeng district and Xixia District of Yinchuan City failed to obtain water permits, install water metering facilities and pay water resource taxes during the process of dewatering. Among them, 65 construction projects discharged construction precipitation into nearby rivers without approval, and 64 construction projects discharged construction precipitation into municipal pipe networks without handling drainage permits and paying sewage treatment fees, resulting in long-term disorderly access and discharge of groundwater resources and waste of groundwater, which not only increased the risks of urban waterlogging, groundwater table decline and land subsidence, but also caused the loss of state-owned property due to inadequate payment of sewage treatment fees and water resources taxes.
According to the water law, regulations on river management, regulations on urban drainage and sewage treatment, regulations on the management of water intake permit and water resource fee collection, and measures for expanding the pilot implementation of water resource tax reform, the state has implemented a water intake permit system and a paid use system for water resources according to law. In case of precipitation in construction projects, the construction unit shall apply for water use, apply for water intake permit and pay water resource tax; Construction precipitation discharged into the river shall be subject to the consent of the water administrative department; The water administrative department shall submit the relevant information such as the water intake permit and actual water intake of the water intake unit to the water intake unit to declare and pay the water resource tax, or send the water intake information to the tax department for taxation; Where the construction unit discharges sewage into urban drainage facilities, it shall apply for a permit to discharge sewage into the drainage pipe network and pay the sewage treatment fee. The water administrative department, the municipal administration department, the tax department and other administrative organs have the supervisory responsibility for this, and failed to supervise and inspect the above-mentioned illegal water intake and drainage behaviors in time, resulting in the water intake and drainage chaos in the construction field not being effectively curbed.
In view of the above problems, in March, 2021, the procuratorial organs put forward pre-litigation procuratorial suggestions to the municipal drainage authorities, suggesting that they strengthen the supervision responsibility of urban drainage and sewage treatment to ensure the orderly discharge and rational utilization of construction precipitation; In May and July of the same year, the procuratorial organs issued procuratorial suggestions before litigation to the water department, tax department, comprehensive law enforcement and other administrative organs, suggesting that the water administrative department should strengthen the management of precipitation and water intake for construction projects and protect the river course, timely verify the water intake, and assist the tax department in collecting water resources tax; It is suggested that the tax department and the water department should establish an information sharing mechanism and collect water resource tax in time; It is suggested that the comprehensive law enforcement department should intensify the investigation and punishment of illegal water intake and drainage behavior of the construction unit during construction precipitation, and actively cooperate with the administrative department to collect relevant taxes and fees. At the same time, it is suggested that the above-mentioned administrative organs clarify their work responsibilities, break down information barriers and form a joint effort.
After the procuratorial proposal was issued, the procuratorial organ and the administrative organ held several joint meetings, and fully communicated with the administrative organ on issues such as cooperation and cooperation between the administrative organs, improving the comprehensive utilization level of groundwater, and recovering state-owned property, and reached a consensus. In May and September, 2021, the relevant administrative organs respectively replied in writing to the implementation of the rectification. The water administrative department of Yinchuan City took the lead in clarifying the division of responsibilities with the departments of examination and approval management, housing construction, municipal administration, taxation, comprehensive law enforcement, etc., and jointly issued a notice to all construction units in Yinchuan City to strengthen the construction precipitation management of construction projects within the scope of the three districts of Yinchuan City, and adopted ways such as holding a rectification promotion meeting, joint law enforcement, issuing a rectification notice, and publicizing policies, etc., requiring water intake and drainage units to rectify within a time limit. With the joint promotion of various administrative organs, 22 projects under construction have reissued water intake permits and drainage permits, installed water intake metering facilities and built water treatment facilities. Scientifically plan the drainage methods for all projects under construction within the jurisdiction, and improve the reuse rate of groundwater through greening irrigation, site dust reduction and other means. Relevant enterprises paid water resource tax of 11.183 million yuan, late payment fee of 2.063 million yuan and sewage treatment fee of 8.79 million yuan. At the same time, six administrative organs, including the water administrative department, jointly issued the Interim Measures for the Administration of Construction Dewatering of Construction Projects in Yinchuan City, further clarifying and standardizing the supervision responsibilities, information sharing, joint law enforcement, and comprehensive utilization of groundwater among administrative organs, and clarifying that groundwater is given priority for concrete maintenance, dust suppression, vehicle cleaning, green irrigation, etc.
In February, 2022, the procuratorial organs put forward legislative proposals to the Standing Committee of the National People’s Congress, suggesting that the Regulations on Water Resources Management in Yinchuan City be amended to increase the comprehensive utilization of construction precipitation in the construction field. On November 10, 2022, the legislative amendment proposal was adopted and promulgated by the Standing Committee of the National People’s Congress, and it will be implemented on January 1, 2023.
[Typical meaning]
Ningxia is located in the arid and semi-arid area of northwest China, where water resources are seriously scarce. As the only province in the Yellow River Basin, strengthening the protection and comprehensive utilization of groundwater resources in the field of construction projects plays a vital role in promoting the sustainable utilization of water resources in the Yellow River Basin. In this case, the procuratorial organ gave full play to the procuratorial function of public interest litigation, issued pre-litigation procuratorial suggestions to administrative organs, and urged administrative organs such as municipal drainage, water affairs, taxation and comprehensive law enforcement to strengthen their supervisory responsibilities, carry out collaborative governance, and introduce industry norms. At the same time, it puts forward suggestions to amend the law and promote the protection and management of groundwater resources in the field of construction projects to be written into local legislation, which not only realizes the economical utilization of water resources and prevents the loss of state-owned assets, but also improves the local legislation on water resources protection, effectively safeguards the national interests and social public interests, and highlights the role of procuratorial organs in the ecological protection and high-quality development of the Yellow River Basin.
The People’s Procuratorate of Baotou City, Inner Mongolia Autonomous Region urged the rectification of over-exploitation and illegal use of Yellow River water.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation Water resources protection Treatment of over-exploitation of groundwater in violation of regulations
【 gist 】
After consultation, the procuratorial organ handles administrative public interest litigation cases, and the administrative organ’s willingness to rectify is not positive, and the progress is slow. The procuratorial organ shall put forward procuratorial suggestions according to law, urge the administrative organ to fully perform its duties according to law, and promptly stop the illegal acts of destroying water resources.
[Basic case]
The Baotou section of the Yellow River starts from Jiuyuan District of Baotou in the west and is less than 60 kilometers away from the drinking water source of Yellow River painter Yingzi in Baotou Rare Earth High-tech Zone. The water intake of the Yellow River painter Yingzi water source is close to the bank of the Yellow River, which is one of the main sources of urban public water supply in Baotou City, accounting for 81.6% of the urban public water supply. Baotou A Water Company Limited (hereinafter referred to as A Water Company), Baotou B Aluminum Company Limited (hereinafter referred to as B Aluminum Company) and Baotou C Coal Chemical Company Limited (hereinafter referred to as C Coal Chemical Company) are located in Baotou Rare Earth High-tech Zone and Jiuyuan District respectively. In December, 2020, A Water Company was approved by the Yellow River Water Conservancy Committee of the Ministry of Water Resources to take water from the Yellow River with a permitted amount of 70 million cubic meters per year, but it took water from the Yellow River painter Yingzi intake in excess of the permitted amount. In 2021, the water intake was 178 million cubic meters, exceeding the permitted amount of 108 million cubic meters. B Aluminum Company and C Coal Chemical Company took 23 million cubic meters and 14 million cubic meters of water from the Yellow River without approval. In the process of production and operation, Inner Mongolia D Mineral Products Distribution Department (hereinafter referred to as D Sales Department) drilled 3 wells in the factory areas of Baidongqu Village Committee of Xiashihao Town and Xinyaopo Village Committee of Baiyin Hetao Village Committee in Guyang County without obtaining a water permit.
【 Investigate and supervise the performance of duties 】
In June, 2022, the People’s Procuratorate of Baotou City (hereinafter referred to as Baotou City Procuratorate) received the clues of cases discovered by the Central Ecological Environmental Protection Inspector assigned by the Procuratorate of Inner Mongolia Autonomous Region. Through on-site inspection, interviews with the masses, collection of materials, aerial photography by drones and other investigation methods, Baotou City Procuratorate initially found out that the above-mentioned units involved had illegal problems of taking water beyond the license and taking water from the Yellow River without approval, and decided to file an investigation on July 5, 2022. After filing the case, the procuratorial organ found out that the water administrative department of the city has the supervisory responsibilities of strictly implementing the total water consumption, controlling the water use efficiency, approving the water intake permit according to law, and guiding the management and protection of groundwater resources. So I decided to consult with Baotou Water Affairs Bureau. After consultation, the water department recognized that it was responsible for the supervision of the enterprises involved in taking water beyond the license and taking water from the Yellow River without authorization. At the same time, it also shows that due to the expansion of urban public water supply area, the sharp increase of population and the increase of water consumption for industrial projects, urban water consumption is seriously insufficient, and there are many problems left over from history, which makes rectification more difficult.
According to the illegal situation and damage consequences identified, in view of the slow rectification of administrative organs, the illegal water intake behavior is still continuing, and the water resources of the Yellow River are seriously damaged, Baotou City Procuratorate issued a pre-litigation procuratorial proposal to Baotou Water Affairs Bureau on July 12, 2022, suggesting that it perform its supervisory duties according to law, pursue the responsibility of relevant illegal responsible persons, and conduct special supervision and inspection on the illegal exploitation of groundwater and illegal water intake from the Yellow River in the city. After receiving the procuratorial suggestions, Baotou Water Affairs Bureau attached great importance to it, held a special meeting to study and deploy, organized relevant personnel to investigate and verify, and formulated special rectification plans for active rectification.
On July 25, 2022, Baotou Water Affairs Bureau replied to the procuratorial organ in writing about the rectification, and it has taken measures to perform its supervision and management duties: First, it made a decision on administrative punishment according to law, requiring the enterprises involved to immediately stop illegal activities and pay fines ranging from 20,000 yuan to 95,000 yuan respectively; The second is to order the enterprises involved to pay the tap water resource tax totaling 52.1751 million yuan; Third, the Plan and Division of Work for Protection and Utilization of Water Resources and Deep Water Saving in Baotou City has been compiled, so that the water intake of A Water Company will be reduced to less than the water intake permit by the end of December 2025, and the production water of B Aluminum Company will be replaced with reclaimed water by the end of December 2023.
In the process of follow-up supervision, the procuratorial organ promptly urged the water department to take effective measures to carry out the investigation and rectification of water intake in the whole city and promote the treatment of complaints. It is suggested to focus on investigating and dealing with illegal acts such as drilling wells without authorization, taking water without a license, taking water beyond the plan, and resolutely stop and close illegal self-prepared wells. Up to now, the water department has dispatched 189 law enforcement personnel, inspected 150 targets, filed 12 cases, and closed 14 underground water source wells.
[Typical meaning]
The Yellow River is in serious shortage of water resources, and promoting the economical and intensive utilization of water resources is an important policy to protect the Yellow River water resources. In this case, the procuratorial organ gave full play to the procuratorial function of public interest litigation, conducted in-depth investigation in accordance with the law, analyzed the causes of the case, identified the subject of supervision, clarified the supervisory responsibilities, and continued to follow up supervision through consultation, procuratorial suggestions and other supervision methods, urging the administrative organs to perform their duties in a timely and comprehensive manner according to law to ensure the effective protection of the Yellow River water resources. At the same time, the procuratorial organs also promote industry governance through case handling and promote the formation of a long-term mechanism for the protection of water resources in the Yellow River.
The People’s Procuratorate of Xinzhou City, Shanxi Province urged the protection of groundwater resources.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation "River and Lake Chief+Procurator-General" mechanism for groundwater resources protection and construction projects
【 gist 】
In view of the waste of water resources in the process of groundwater discharge in construction projects, procuratorial organs can find out the facts of the case by relying on the cooperation mechanism of "river and lake chief+procurator-general", put forward procuratorial suggestions and urge relevant administrative organs to fully perform their supervisory duties according to law, so that public welfare can be protected in time and effectively.
[Basic case]
Xinzhou City, located in the Loess Plateau, is the first city where the Yellow River enters Shanxi. However, due to the influence of topography and climate, the city is short of water resources, which is a serious water shortage area. On August 31, 2020, a real estate development company in Shanxi obtained the "Construction Project Construction Permit" for a residential construction project in Gongyuan Street, Xinfu District, Xinzhou City, and started construction the following month. During the construction process, in order to avoid foundation settlement, from September 2020 to April 2022, the company pumped groundwater by drilling wells and discharged it directly into municipal underground wells through plastic pipes, and part of the water overflowed onto the pavement, resulting in a prominent problem of water resources waste. In this regard, the relevant administrative organs did not perform their supervisory duties.
【 Investigate and supervise the performance of duties 】
In April 2022, Xinzhou People’s Procuratorate (hereinafter referred to as Xinzhou Procuratorate) received feedback from the masses that there was a waste of water resources in the construction of a real estate project. After preliminary investigation, it was found that the company did not apply for the relevant water intake permit, and most of the groundwater was directly discharged after long-term pumping, with low secondary utilization rate and obvious waste of groundwater resources. On April 19, 2022, Xinzhou City Procuratorate filed a case through administrative public interest litigation, and carried out supervision work on administrative organs with supervisory responsibilities according to law.
After filing the case, Xinzhou City Procuratorate further found out by obtaining the relevant licenses of the company’s water intake permit, asking the person in charge of the construction project, etc.: Before and after the start of the project, it was just during the reform of the administrative examination and approval service function in Shanxi Province, and the transfer of some administrative licensing powers was not clear, so the company failed to handle the water intake permit. Since the start of the project, the company has neither implemented the requirements of total water intake control and quota management, installed metering facilities, nor comprehensively adopted measures such as recycling water and comprehensive utilization. Up to 38 wells have been set up for groundwater pumping and drainage, and most of the groundwater passes through four 1.5— 2.5cm diameter plastic pipes are continuously discharged into urban underground wells, resulting in serious waste of water resources. Xinzhou City Procuratorate also found through data comparison that the real estate company still owed water resources tax.
On April 22nd of the same year, Xinzhou City Procuratorate put forward procuratorial suggestions to Xinzhou Water Conservancy Bureau (hereinafter referred to as the Municipal Water Conservancy Bureau), which is responsible for supervision, to urge it to perform its duties of water resources protection, to verify the water intake of the company according to law, and to transfer relevant data and information to the tax authorities. Xinzhou City Procuratorate organized a public hearing on April 26th. The water conservancy department gave a detailed explanation on the adverse impact of waste of groundwater resources on the ecological environment of the Yellow River Basin, the water quantity accounting and information transfer of construction projects, and put forward specific plans for further implementing the mechanism of "river and lake leaders+procurator-general" and working closely with relevant departments. After the hearing, Xinzhou City Procuratorate communicated and coordinated with the administrative examination and approval, water conservancy, taxation and other departments for many times, explaining the law to the aforementioned real estate development company and promoting the rectification work.
On June 18, 2022, the water conservancy department replied that the real estate company had been urged to complete the water resources demonstration table of the project water intake permit and strengthen water-saving management. According to the audit, the company’s water intake is about 54,480 cubic meters, and the relevant information has been transferred to the tax authorities. After that, the company declared independently in the third quarter of that year and paid 65,376 yuan of water resources tax to the designated account in full.
In order to further consolidate the effectiveness of handling cases, the procuratorial organs at Xinzhou city and county levels have filed 12 cases in similar situations, urging the recovery of water resources taxes of more than 250,000 yuan. The Municipal Water Conservancy Bureau has carried out special rectification of water drainage for construction projects in the city, and urged 25 projects under construction in the city to apply for water permits according to law and install all metering equipment. In addition, the Municipal Water Conservancy Bureau will also establish an information and data transmission mechanism with the tax authorities to share information and data such as water intake units and water volume in a timely and accurate manner to avoid the loss of water resources tax.
[Typical meaning]
The shortage of water resources is the biggest contradiction in the Yellow River Basin, which has long restricted the development of regional agriculture, industry, economy and society. Procuratorial organs have thoroughly implemented the cooperation mechanism of "river and lake chiefs+procurator-general", and urged administrative organs to perform their supervisory duties in time to effectively promote the economical and intensive use of water resources in view of the waste of groundwater resources caused by unlicensed water intake and drainage. Through multi-department linkage, the problems of not handling water intake permit in time, water intake and drainage supervision and water resource tax collection and management are solved, and a good atmosphere of taking water according to law, saving water and protecting water in love the water is jointly created.
The People’s Procuratorate of Dingbian County, Shaanxi Province urged the protection of water resources for administrative public interest litigation series.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation; source control of illegal water intake for water resources protection
【 gist 】
Procuratorial organs can take the initiative to dock with the NPC’s law enforcement inspection work, promptly find out the clues of public interest litigation cases, and put forward procuratorial suggestions to the administrative organs for problems such as the relevant subjects failing to measure water and illegally take groundwater according to law, and urge them to rectify according to law.
[Basic case]
Dingbian County, Shaanxi Province is the largest oil-producing county in China, which is located in the transition zone between the Loess Plateau and the Mu Us Desert. Water resources are seriously scarce and the contradiction between supply and demand is prominent. Over the years, problems such as illegal water intake and unclear groundwater table have been widespread, and the groundwater level has been declining. Sixteen oil and gas exploration enterprises, such as an oil and gas company with an annual water intake scale of 72,000 cubic meters to 2,431,900 cubic meters, have problems such as not installing water metering facilities, the installed water metering facilities do not meet the national technical standards, and the water metering facilities cannot operate normally, and they have not carried out water metering according to law. Eight large-scale oil and gas exploration enterprises, such as an oil and gas company, did not indicate the location, method, quantity and quality of water withdrawal. Villagers in six towns and villages, such as Jiyuan Town and Youfangzhuang Township, used earth dam interception and electric pumping to illegally extract the water from the Cross River and sell it to oil and gas exploration enterprises for profit. Villagers in nine towns, such as Yangjing Town and Jiyuan Town, drilled wells without permission to sell water to oil and gas exploration enterprises for profit. Many indexes of groundwater such as fluoride, nitrate and arsenic in 16 well sites in 12 townships such as Jiyuan Town and Hequan Town do not meet the groundwater quality standards. The local administrative organs have not carried out water quality monitoring in water functional areas according to law for a long time, and have not carried out underground water monitoring station network and information construction.
【 Investigate and supervise the performance of duties 】
Since April 2020, the Standing Committee of the People’s Congress of Dingbian County, Shaanxi Province has carried out law enforcement inspection on water resources and water pollution, and the People’s Procuratorate of Dingbian County, Shaanxi Province (hereinafter referred to as Dingbian County Procuratorate) actively cooperated with the law enforcement inspection, during which it thoroughly explored the clues of public interest litigation cases and filed a case on July 20, 2020. Through on-the-spot investigation, we asked relevant personnel, visited 50 oil and gas exploitation enterprises in 19 towns and villages in the county, obtained 55 written materials from administrative organs, entrusted an environmental science institute to arrange monitoring points for oil and gas exploitation groundwater, and entrusted a testing company to collect and test 135 soil samples from oil production reinjection water, surface water, groundwater and abandoned well sites of oil and gas enterprises, and found out the facts of the case according to law.
Dingbian County Procuratorate issued procuratorial suggestions to Dingbian County Water Conservancy Bureau in view of the problems found successively, such as failure to measure water intake according to law, irregular water intake permit, illegal water intake, and failure to carry out water quality monitoring, suggesting that it strengthen supervision over the standardized installation of water source well metering facilities of oil and gas exploration enterprises in the county, strengthen supervision over water intake and water withdrawal permit, comprehensively investigate and investigate illegal water intake, build a network of groundwater quality monitoring stations, and fully perform water resources protection duties according to law.
After receiving the procuratorial suggestions, the Dingbian County Water Conservancy Bureau, under the overall arrangement of the local Party committee and government, carried out rectification work: (1) 2,758 water intake metering facilities were installed and connected to the Dingbian County Water Resources Center to realize the full coverage of dynamic monitoring of water intake of oil and gas exploitation enterprises, and 2,321 ordinary water meters for agricultural irrigation and 302 sets of intelligent metering facilities with dual control of hydropower were installed, basically realizing real-time metering of water intake. (2) Change the paper audit of water intake permit of oil and gas exploration enterprises into electronic audit, and register water withdrawal information online. (3) investigate and deal with illegal dam water intake behavior, and require the electric power department to strictly review the household clearance, and those who have not applied for the water intake permit will not be allowed to supply electricity to the household. (4) Investigate and deal with the behavior of drilling wells without authorization, and order 65 villagers who drill wells without authorization to bury wells and close 61 wells with their own water sources in the urban pipe network coverage area, and impose a fine of 616,100 yuan and recover the water resources fee of 75,745.61 yuan. (5) It is planned to invest 1,322,500 yuan to build a network of groundwater monitoring stations and 10 groundwater monitoring wells, and the project has started. Invested 888,000 yuan to build 40 typical wells with the coefficient of "converting water by electricity". The project has completed bidding and is ready to install equipment.
In response to the water pollution problems found, the Dingbian County Procuratorate also urged the ecological and environmental departments to perform their duties according to law. The eco-environmental department investigated and rectified 5,703 technically closed wells and 6,648 water injection wells in the county; Ordering oil and gas exploration enterprises to clean up oil sludge and set up underground water quality observation and monitoring wells; An oil and gas exploration enterprise was ordered to treat abandoned well sites. At present, 46 abandoned well sites have been treated, covering an area of 11,849 square meters. Monitoring wells for oil and gas development plots have been laid, and 57 monitoring wells for groundwater quality observation have been laid at present.
Dingbian County Procuratorate put forward countermeasures and suggestions on more than 10 problems in water resources protection and water pollution control found in handling cases, and submitted them to the local party committee and government, which provided an important reference for Dingbian County People’s Congress Standing Committee to issue the Resolution on Further Strengthening Water Pollution Prevention and Control. Promote the county party Committee to formulate a plan to strengthen the comprehensive management of groundwater, strengthen the comprehensive management of water resources, and save intensive water; Promote the county government to formulate opinions on the implementation of rigid constraints on water resources and water resources management methods, implement the work of strictly controlling groundwater level control indicators and total water intake control indicators, refine protection measures, and clarify the division of responsibilities; Promote the county party Committee office and the county government office to formulate the work plan of "determining land by water and determining production by water", and deploy the water resources exploitation work in the next five years from 11 aspects, including electronic water control.
[Typical meaning]
Water resources are the lifeblood of the Yellow River basin and an important support for high-quality economic and social development along the Yellow River. Procuratorial organs do a good job in linking the NPC’s law enforcement inspection with procuratorial public interest litigation, deeply explore the clues of cases, and put forward procuratorial suggestions to urge administrative organs to perform their duties according to law, investigate and deal with illegal acts, and improve water resources supervision measures, thus achieving the effect of "promoting governance by case". At the same time, procuratorial organs should be "rule of law assistants" of party committees and governments, sum up the problems found in handling cases, put forward countermeasures and suggestions, promote local perfect system construction, strengthen rigid constraints on water resources, scientifically plan and deploy water resources protection, coordinate the relationship between energy exploitation and water resources protection, and effectively promote the green development of local economy and society.
Yao Mouqiang, lingbao city City, Henan Province, illegally exploited the river sand of the Yellow River tributary.
[Keywords:]
Determination of the amount of stolen goods from illegal mining in the tributaries of the Yellow River and the treatment of the source of complaint
【 gist 】
For cases of illegal sand mining in the Yellow River basin, which seriously endangers the ecology and river regime stability in the Yellow River basin, the procuratorial organs should severely punish them according to law, and accurately identify the value of illegally mined river sand and gravel by intervening in advance to guide investigation and evidence collection and collecting evidence such as a fixed amount of stolen goods; Actively perform their duties according to law to promote the governance of litigation sources, and use procuratorial suggestions to handle cases to promote social governance.
[Basic case]
From 2016 to May 2022, the defendant Yao Mouqiang hired Liu Moumou and Hu Moumou and others (both handled separately) to illegally excavate sand in the Shahe River (a tributary of the Yellow River) in Xiyan Township, lingbao city City, Henan Province by means of water pump and sand dredger, which seriously endangered the ecology and river regime stability of the Yellow River basin. Yao Mouqiang sold the illegally excavated river sand to the outside world, with a sales amount of 3.98 million yuan. The public security organs also seized 4.9024 tons of unsold Yellow River sand at the crime scene, with a value of more than 27,000 yuan.
[Procuratorial performance]
During the one-year special rectification campaign of illegal sand mining in Henan Province, which started in September 2021, Sanmenxia River Chief Office gave full play to the role of "River Chief+"working mechanism according to the clues in the early stage. On the evening of May 18, 2022, it organized the Municipal Procuratorate, the Yellow River Affairs Bureau in western Henan and the lingbao city Forest Public Security Bureau to jointly make unannounced visits to the Sanmenxia reservoir section in the lower reaches of Shahe River, and found that two people were carrying out illegal sand mining. On May 24th, 2022, Sanmenxia Hechang Office, together with the Supervision Committee of the Municipal Commission for Discipline Inspection and the Municipal Procuratorate, interviewed lingbao city Hechang Office, lingbao city Shahe County Hechang, and lingbao city Xiyan Township Shahe Township Hechang. On May 27th, 2022, lingbao city Public Security Bureau took the suspect of illegal sand mining on the evening of May 18th as a breakthrough to initiate investigation. After preliminary investigation, it was found that the time span of committing the crime in this case was long. Yao Mouqiang was a former deputy to the township people’s congress and a village cadre, and he was lucky because of his special status. He only admitted that the river sand seized on the spot was illegal mining and refused to confess his previous illegal mining and sales behavior. In order to accurately identify the time of crime and the value of river sand, lingbao city Public Security Bureau invited Luoyang Railway Transport Procuratorate (hereinafter referred to as "Luoyang Railway Inspection Institute") to intervene in advance to guide investigation and evidence collection according to the centralized jurisdiction regulations of environmental resources crime cases in Henan Province. Luoyang Iron Inspection Institute suggested that the public security organs should find out the approximate time span of Yao Mouqiang’s illegal sand mining by interviewing witnesses, and confirm suspicious transactions by querying all the bank transaction details of Yao Mouqiang and his family at the time of the crime.By checking the transaction of river sand one by one with the buyers, we can find out all the sales amounts of all the illegally exploited river sand. In the process of examining and approving the arrest, Luoyang Iron Inspection Institute took compulsory measures to arrest Yao Mouqiang according to law, considering that Yao Mouqiang illegally exploited river sand amounting to 4 million yuan and refused to confess the crime. At the same time, fully explain the law to Yao Mouqiang, explain to him the situation of protecting the ecological environment of the Yellow River, the harm of illegal exploitation of river sand, preach legal knowledge and plead guilty and punish leniently with cases. In the end, Yao Mouqiang said that he had deeply realized the harm of his actions to environmental resources, pleaded guilty in the review and prosecution, and voluntarily returned some illegal income.
On January 11, 2023, Luoyang Iron Inspection Institute filed a public prosecution against Yao Mouqiang for illegal mining in Zhengzhou Railway Transport Court in accordance with the centralized jurisdiction of environmental resources trials in Henan Province. On January 17, Zhengzhou Railway Transport Court made a judgment on this case in the first instance, adopted all the facts and sentencing suggestions accused by the procuratorate, sentenced Yao Mouqiang to three years’ imprisonment and fined RMB 30,000. The tools for committing crimes such as illegal sand mining were handled by the seizure organ according to law. Yao Mouqiang pleaded guilty in court.
In view of the problems reflected in this case, such as inadequate supervision and untimely investigation, Luoyang Railway Inspection Institute issued a procuratorial proposal on social governance to the Xiyan Township People’s Government of lingbao city according to law, suggesting that inspections should be intensified, cooperation should be strengthened to form a joint force of supervision, and a long-term supervision mechanism should be established. At present, the sand mining chaos that has lasted for many years in this area has been effectively curbed.
[Typical meaning]
Illegal sand mining in the river has left a huge security risk to the ecological environment and flood safety of the river. There are some problems in this case, such as difficulty in obtaining evidence and proving it, and the incompleteness of the evidence chain also brings difficulties to the prosecution’s accusation of crime. In handling the case, the procuratorial organs actively played the role of pre-litigation guidance, guiding the public security organs to collect evidence comprehensively and objectively on issues such as evidence collection, fact finding and law application, and actively carrying out interpretation and reasoning to urge the defendant to plead guilty voluntarily. In view of the criminal purpose of criminals seeking illegal benefits, the procuratorial organs not only pay attention to the collection and extraction of all kinds of evidence to prove the sales process and the value of mineral resources, but also fully recover illegal income together with the investigation organs. While effectively punishing crimes, we should give full play to the function of legal supervision, and handle cases to promote the rectification of similar cases, so as to achieve the effect of "handling one case and managing one piece", which highlights the role and actions of procuratorial organs in the ecological protection of the Yellow River.
The procuratorial organ of Henan Province urged and rectified the administrative public interest litigation case of Upright occupying the main stream of the Yellow River across the province.
[Keywords:]
Administrative Public Interest Litigation Pre-litigation Procedure Inter-provincial Upright Flood Protection and Safety Integration Working Mechanism
【 gist 】
For the long-standing problem of cross-regional encroachment on river shoreline, procuratorial organs can use the integrated working mechanism, play the role of communication, coordination and centralized jurisdiction of territorial procuratorial organs and railway transportation procuratorial organs, strengthen cooperation with water conservancy departments, and promote local governments to properly solve the problem of public welfare damage in time.
[Basic case]
In 2012, in order to solve the traffic problem during the overhaul of Dongming Yellow River Bridge, the Yellow River Conservancy Commission approved the erection of a temporary pontoon bridge on the Yellow River between Puyang County, Henan Province and Dongming County, Shandong Province, requiring the construction unit to dismantle the pontoon bridge and ancillary facilities in time after the completion of the overhaul of the bridge. The people’s governments of Puyang County, Henan Province and Dongming County, Shandong Province made written commitments respectively. In July 2018, a pontoon bridge company in Dongming County, Shandong Province (hereinafter referred to as pontoon bridge company) only dismantled the pontoon bridge as a construction unit, but did not clear Upright and tugboat out of the Yellow River. During the flood season of the Yellow River in 2021, Upright and the tugboat were washed away from the original parking place, and then towed to the bank of Puyang section of the Yellow River downstream of Dongming Yellow River Bridge by pontoon company. Nine groups of Upright were parked on site, each group of Upright was 33 meters long, 36 meters wide and weighed about 380 tons, which seriously encroached on the river coastline and affected the flood safety. The Yellow River Conservancy Commission, Henan Yellow River Affairs Bureau (hereinafter referred to as Henan River Affairs Bureau) and other relevant departments have repeatedly urged the pontoon bridge company to correct the illegal behavior and impose administrative fines, but the pontoon bridge company only paid the fine, and Upright and the tugboat have not been evacuated from the Yellow River.
【 Investigate and supervise the performance of duties 】
In January, 2022, relying on the cooperation mechanism of "River Chief+Procurator-General", the Henan River Chief Office (hereinafter referred to as the Provincial River Chief Office) and the Henan River Affairs Bureau successively transferred the clues of this problem supervised by the Ministry of Water Resources to the Henan Provincial People’s Procuratorate (hereinafter referred to as the Henan Provincial Procuratorate). In view of the fact that the problem lasted for a long time and involved two provinces and counties, the Henan Provincial Procuratorate initiated an integrated case-handling mechanism after judgment, guided the Zhengzhou Railway Transportation Branch of the Henan Provincial Procuratorate (hereinafter referred to as Zhengzhou Railway Inspection Branch) to further investigate and collect evidence, and appointed the procuratorial organs at Puyang City and County levels to assist in communication and coordination with the local government and the masses. At the same time, the Henan Provincial Procuratorate reported the case to the Supreme People’s Procuratorate in time, and asked the Supreme People’s Procuratorate to coordinate with the relevant procuratorial organs in Shandong Province to cooperate. Subsequently, the People’s Procuratorate of Dongming County, Shandong Province actively assisted in verifying the relevant information of the pontoon company.
In April 2022, in order to ensure the efficiency, quality and effectiveness of handling cases, the Henan Provincial Procuratorate handed it over to Zhengzhou Railway Inspection Branch for filing. After a joint on-the-spot investigation with the Provincial River Chief’s Office and the Henan River Affairs Bureau, and consulting the administrative law enforcement materials, the procuratorial organ ascertained the facts of the case according to law and fixed the relevant evidence. According to the flood control law, regulations on river management, measures for the management of the Yellow River in Henan Province and other relevant regulations, Puyang County People’s Government, as a territorial government, has the supervisory responsibility for the management, protection, governance and flood control of the Yellow River in its jurisdiction. Zhengzhou Railway Inspection Branch issued a procuratorial suggestion to Puyang County People’s Government, suggesting that it should fulfill the main responsibility of flood control and flood fighting in accordance with the law, deal with the problem that Upright occupied the coastline of the Yellow River in this section as soon as possible, which affected flood discharge and destroyed the ecological environment of the Yellow River, and investigate other similar situations within its jurisdiction.
After the procuratorial suggestions were issued, the third-level procuratorial organs in Henan Province held discussions with Puyang County People’s Government for many times, and reached consensus on issues such as performing supervisory duties and commitment responsibilities according to law. Have a discussion with the First Yellow River Affairs Bureau of Puyang Yellow River Affairs Bureau, and suggest that it fully fulfill the main responsibility of the Yellow River water administrative law enforcement and actively cooperate with the county people’s government to do relevant work; Cooperate with Puyang county people’s government to explain the law to enterprises and win their understanding and cooperation. The People’s Government of Puyang County attached great importance to it, set up a special work class to study and introduce a remediation plan, and incorporated this issue into the account of the county party committee and county government inspectors. Henan River Affairs Bureau and Puyang Yellow River Affairs Bureau No.1 Yellow River Affairs Bureau set up a work leading group, stationed in the field office, and followed up the rectification in time.
With the joint efforts of procuratorial organs at all levels, water conservancy departments, river affairs departments and Puyang county people’s government, the pontoon bridge company revised it five times before and after to form a remediation plan. At the same time, at the suggestion of the procuratorate, Puyang County People’s Government fully considered the impact of Upright’s removal on the occupied land, and actively compensated the people for the loss of young crops. On April 10th, 2022, the pontoon company hauled nine groups of Upright ashore. On April 25th, the pontoon bridge company organized personnel and equipment to clear and transport 3,300 tons of steel cut by Upright, and the site was restored to its original state and the river channel was restored to its original appearance. On June 14th of the same year, the Henan Provincial Procuratorate invited the Provincial River Chief’s Office and the Henan River Affairs Bureau to make a joint on-site return visit. After comprehensive judgment, it was confirmed that all the problems in the case had been rectified, and the Yellow River Conservancy Commission sent a letter to the Henan Provincial Procuratorate to express its gratitude. At the same time, the Puyang County People’s Government carried out special rectification actions according to the procuratorial suggestions, and sorted out 53 clues about the problems of rivers and lakes affecting flood discharge in the county. At present, all the rectification has been completed.
[Typical meaning]
The An Lan of the Yellow River is related to people’s life and property safety, social security and national security. Based on the procuratorial function of public interest litigation, procuratorial organs give full play to the advantages of integrated working mechanism, actively perform their duties in coordination with the upper and lower levels, simultaneously promote case investigation, coordination and communication, follow-up supervision and other work, urge local governments to fully perform their duties according to law, properly handle the reasonable demands of the masses, and ensure the smooth progress of rectification work. At the same time, relying on the system of "River Chief+Procurator-General" and working closely with the member units of the system of River Chief, the hidden danger of flood in the trunk of the Yellow River, which lasted for many years, was finally solved quickly and effectively, making positive contributions to the maintenance of the An Lan of the Yellow River.
Wang Moujie and Wang Moucun, Yuncheng County, Shandong Province, illegally exploited the Yellow River sand.
[Keywords:]
Restraining Order of Restorative Judicial Practice for Illegal Exploitation of River Sand in the Yellow River Course Criminal Incidental Civil Public Interest Litigation
【 gist 】
In the process of handling crimes that damage the ecological environment of the Yellow River, the procuratorial organs adhere to the integration and the integration of the "four major prosecutors". While punishing criminal crimes according to law, they actively practice the concept of restorative justice, and timely repair the damaged ecological environment by filing criminal incidental civil public interest litigation, thus achieving the dual purposes of punishing crimes and protecting the ecological environment.
[Basic case]
Defendants Wang Moujie and Wang Moucun conspired to pump sand from the Yellow River for profit, and invested in the purchase of forklifts, leveling roads, leasing land and excavating grit chambers respectively. From June to November, 2019, Wang Moujie and Wang Mou hired others to use sand pump and other professional equipment to extract river sand from the Yellow River channel on the west side of Liqingfu Bridge in Liji Town, Yuncheng County, without obtaining the legal qualification and license certificate for river sand mining. According to the measurement of professional institutions, the amount of precipitated sand is 55,920.88 cubic meters, with an estimated value of 1,864,900 yuan. The two defendants sold 1,100 tons of the above river sand at the price of one ton of 10 yuan and were seized.
[Procuratorial performance]
On February 18, 2020, the public security organ transferred the case to the People’s Procuratorate of Yuncheng County, Shandong Province (hereinafter referred to as "Yuncheng County Procuratorate") for review and prosecution. During the review, Wang Moujie and Wang Moucun proposed that river sand is not a mineral resource, and its behavior does not constitute an excuse for illegal mining. In response to the defense, the prosecutor in charge explained to Wang Moujie and Wang Moucun from the facts of the case, the nature of the behavior, the legal provisions and the ecological protection of the Yellow River basin, and informed them of the serious harm of their actions. Finally, the two suspects realized their mistakes, voluntarily signed a confession and punishment statement, and expressed their willingness to clear the grit chamber. On February 22, Yuncheng County Procuratorate set up a joint case-handling team composed of criminal prosecution and public interest litigation prosecution departments to investigate and verify the specific harm caused by this case to the flood safety and ecological environment of the Yellow River. On this basis, the joint case-handling team invited experts from Yuncheng Yellow River Affairs Bureau to the crime scene for field investigation, measurement, analysis and demonstration, formulated a restoration plan, and issued opinions and accounting opinions on professional issues such as ecological damage and environmental restoration caused by sand mining. On April 7, Yuncheng County Procuratorate filed a public prosecution against Wang Moujie and Wang Moucun for the crime of illegal mining in Yuncheng County People’s Court, and at the same time filed a criminal incidental civil public interest lawsuit. On July 30th, the People’s Court of Yuncheng County sentenced the defendants Wang Mojie and Wang Moucun to three years’ imprisonment, suspended for three years, fined a total of RMB 83,000, and confiscated all illegal gains. At the same time, the judgment adopts the opinions of the procuratorate.The two defendants were ordered to clear all grit chambers under the supervision of Yuncheng Yellow River Affairs Bureau within 10 days after the judgment came into effect, to restore the original appearance of the river, and to prohibit Wang Moujie and Wang from engaging in sand mining activities during the probation period. Both defendants pleaded guilty in court. The latter two cleared the grit chamber within the prescribed time limit, restored the original appearance of the river and passed the acceptance of Yuncheng Yellow River Bureau.
On January 25, 2021, in view of the loopholes in the supervision of ecological protection in the Yellow River Basin exposed in this case, Yuncheng County Procuratorate issued a procuratorial proposal on social governance to Yuncheng Yellow River Affairs Bureau, which was highly valued by Yuncheng Yellow River Affairs Bureau. The two units reached a consensus on further deepening the working mode of "river (lake) leader+procurator-general" and forming a joint force of law enforcement and justice. Subsequently, Yuncheng Yellow River Affairs Bureau further strengthened the supervision of daily and surprise inspections of rivers, and actively built a safety barrier to protect the ecological environment of the Yellow River Basin.
[Typical meaning]
Illegal sand mining in the Yellow River seriously threatens the flood safety of the Yellow River and should be severely cracked down. In view of the weak legal awareness of some criminals, the procuratorial organs insisted on handling cases in parallel with popularizing laws, and urged the perpetrators to deeply understand the serious harm of illegal sand mining through full explanation and reasoning. Adhere to the concept of restorative justice, actively practice the four-in-one case-handling mode of "criminal attack+public interest litigation+ecological restoration+warning education", so as to achieve the dual purposes of punishing crimes and preventing crimes through the application of criminal incidental civil public interest litigation and employment prohibition order. Adhere to the source governance, take the role of "I am in charge" to promote the "all-in-charge" of functional organs, issue procuratorial suggestions on social governance to relevant administrative organs, and promote the source governance and treatment of all kinds of ecological and environmental problems.
The People’s Procuratorate of Dongping County, Shandong Province urged and rectified the administrative public interest litigation case of farms in the Yellow River beach area.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation Governing illegal aquaculture in flood storage beach area
【 gist 】
In view of the behaviors that damage the public welfare, such as disorderly construction, illegal farming and so on, the procuratorial organs can use various investigation methods to find out the facts, clarify the supervision responsibilities of administrative organs, put forward procuratorial suggestions and urge multiple departments to perform their duties in accordance with the law, and eliminate the hidden dangers of flood discharge safety. At the same time, round tables can be used to promote multi-sectoral collaboration to promote the transformation and upgrading of related industries, so as to achieve coordinated development of ecological protection and people’s livelihood security.
[Basic case]
From 2007 to 2012, when the People’s Government of Daimiao Town and the People’s Government of yinshan town City in Dongping County promoted animal husbandry and breeding projects, they landed in seven villages including Xuezhuang Village, Wangchang Village, Zhantun Village and Liuzhuang Village in yinshan town. Without going through the legal procedures, 54 farms were built in Daimiao Town and yinshan town Section of Dongping County in the Yellow River beach area, occupying agricultural land and unused land illegally, covering a total area of 101,800 square meters. The floodplain of the Yellow River is an important area for sediment deposition and flood detention. The above-mentioned farms not only destroy the land resources of the country, but also affect the flood safety of the river course and pose a threat to the lives and property of local people. For more than ten years, the competent authorities of the Yellow River and the competent departments of natural resources have not investigated and dealt with the above-mentioned illegal construction behaviors, resulting in continuous infringement of national interests and social public interests.
【 Investigate and supervise the performance of duties 】
Dongping County People’s Procuratorate (hereinafter referred to as Dongping County Procuratorate) found that there were many farms in Daimiao Town, Dongping County, the Yellow River beach area, which may infringe on the national interests and social public interests, so it conducted a preliminary investigation according to law. Dongping County Procuratorate conducted a comprehensive investigation of the "four chaos" in the Yellow River beach area with the help of the remote sensing image of the national land space satellite of Dongping County Natural Resources and Planning Bureau (hereinafter referred to as the county self-regulation bureau). At the same time, it was confirmed that seven villages, including Xuezhuang Village and Xiao Xu Cun, Daimiao Town, Dongping County, occupied 54 illegal farms in the Yellow River beach area, which affected the flood safety of the Yellow River. After investigation and verification with Dongping Yellow River Affairs Bureau of Dongping Lake Administration (hereinafter referred to as Dongping River Affairs Bureau) and County Self-Regulation Bureau, it was found that none of the above farms had gone through the formalities of agricultural land conversion approval and construction land planning permission. After verification, the relevant departments have not asked the farm to go through the formalities since its completion, and it has not been investigated. In July, 2021, Dongping River Affairs Bureau inspected and rechecked the livestock and poultry breeding problems within the management scope of rivers and lakes, including the above-mentioned farms, according to the notification requirements of the provincial river chief office. Due to complicated causes, people’s livelihood, difficulty in rectification and other factors, it was not identified as a "four chaos" problem, and only the Daimiao Town Government was required to formulate a rectification plan and a flood control emergency plan for the farm and put it on record, but it was not further dealt with.
Dongping County Procuratorate found out that there were "compartmentalized" functions in the water administrative supervision and management of the Yellow River basin by collecting the authority list of relevant administrative organs according to law, which resulted in the chaos of illegal construction in the Yellow River beach area. On April 20, April 21 and May 6, 2022, Dongping County Self-regulation Bureau, Dongping County Comprehensive Administrative Law Enforcement Bureau (hereinafter referred to as the County Law Enforcement Bureau) and Dongping River Affairs Bureau respectively filed cases for their negligence in performing their duties. According to the Water Law, the Flood Control Law, the Regulations on the Management of the Yellow River in Shandong Province, Dongping River Bureau, as the competent authority of the Yellow River, should investigate and deal with the unauthorized construction of various buildings and engineering facilities within the management scope of the Yellow River. According to the land management law, urban and rural planning law and other provisions, referring to Dongping County’s institutional reform plan, the county self-regulation bureau, as the competent department of natural resources, should supervise and inspect violations of urban and rural planning and illegal occupation of agricultural land within its jurisdiction, identify illegal facts and transfer them to the comprehensive administrative law enforcement department for handling; According to the opinions of Dongping County’s institutional reform and the "three decisions" plan of the county law enforcement bureau, the county law enforcement bureau exercises the power of administrative punishment and related administrative coercive power stipulated by laws, regulations and rules on natural resources and planning administration, and should impose administrative punishment on the illegal acts identified by the county self-regulation bureau. The 54 farms involved in the case have survived for more than ten years, and the above-mentioned competent authorities have not made administrative treatment, which is a failure to perform their statutory duties according to law, resulting in continuous infringement of national interests and social public interests.
On May 11 and May 31, 2022, procuratorial suggestions were issued to the above three departments respectively, suggesting that the county self-regulation bureau investigate and determine the illegal occupation of land by 54 farms involved, the county law enforcement bureau impose administrative penalties on the illegal acts identified by the county self-regulation bureau, and Dongping River Bureau investigate and deal with the illegal farms involved in the case according to law, so as to eliminate hidden dangers that hinder the flood safety of the Yellow River in time.
After receiving the procuratorial suggestions, Dongping River Affairs Bureau reported to the procuratorial organs that the rectification of illegally built farms involves planning, government subsidies, etc., and it needs the cooperation of relevant local administrative organs. As the bureau is an agency of the Ministry of Water Resources in Shandong Province, it has no subordinate relationship with Dongping County, and it is difficult to carry out the work, so it requests the procuratorial organs to provide assistance. Dongping County Procuratorate organized Dongping County Civil Affairs Bureau, Dongping County Agriculture and Rural Bureau, Dongping County Immigration Bureau, County Self-regulation Bureau, town government and other departments to jointly hold a round table meeting, suggesting that the loss of farms should be minimized through government subsidies, changing livestock into agriculture, rebuilding in different places, and scale merger. The procuratorial organs’ suggestions have been strongly supported by the administrative organs, and all the administrative organs have indicated that they will actively support the work of Dongping River Bureau.
Houxian Law Enforcement Bureau, County Self-Regulation Bureau and Dongping River Bureau took measures to actively rectify and make a written reply to the contents of the procuratorial suggestions. During the rectification period, Dongping River Bureau took the lead in making a special report to Dongping County People’s Government. Dongping County People’s Government decided to take this opportunity to promote the structural adjustment of livestock and poultry breeding industry in the region, formulate a comprehensive management plan for livestock and poultry breeding in the Yellow River beach area, organize Dongping River Affairs Bureau, Dongping County River Management Office, Dongping County Animal Husbandry Development Center and township government to form a working group, dismantle and clean up all 157 illegal farms in the Yellow River beach area, restore the beach area of more than 250,000 square meters, implement government subsidies, rebuild and grow more than 40,000 square meters of edible fungi, and relocate to form 7 large-scale breeding places.
From July 19th to July 22nd, 2022, Tai ‘an Hechang Office, Dongping County Hechang Office, Dongping Administration of Dongping Lake Administration, Dongping River Affairs Bureau, Dongping Branch of Tai ‘an Ecological Environment Bureau and other departments conducted on-site inspection on the rectification of illegal farms, and Dongping County Procuratorate conducted on-site supervision. After evaluation, all the problems of illegal farms in the Yellow River beach area have been rectified, and the national interests and social public interests have been effectively safeguarded. On July 28, 2022, Dongping County Procuratorate closed the case.
[Typical meaning]
The problem of illegal aquaculture caused by illegal construction in the floodplain of the Yellow River Basin involves the supervision responsibilities of many administrative organs. Due to the overlapping functions of different supervision and management departments, supervision is often ineffective. In this case, the procuratorial organ clarified the supervisory responsibilities of different administrative organs by using various investigation and verification methods, put forward procuratorial suggestions, and urged relevant administrative organs to perform their duties in coordination according to law. In addition, the procuratorial organs took the initiative to perform their duties according to law, and through round tables and other means, they urged the administrative organs to jointly solve the problems left over from the history of beach farming, so as to realize the green development of local livestock and poultry farming.