As the competent unit, the Ministry of Health became the defendant.
Li Gang, doctor of law, believes that the use of the "National Dental Group Certification" logo on Lotte xylitol chewing gum packaging constitutes fraud to consumers. A complaint brought the Ministry of Health, Lotte (China) Food Co., Ltd. and Beijing Jiahe Wu Mei Commercial Co., Ltd. to court. The reporter learned today from the Chaoyang District People's Court in Beijing that the court has accepted the case a few days ago.
Li Gang, who just returned from a business trip in Beijing, told reporters today that he did not know that the court had accepted the case. He affirmed that the National Dental Prevention Group is not a society, but a temporary organization established by the Ministry of Health to exercise certain management functions. However, it directly engages in certification and uses certification marks, which seriously violates the law and misleads consumers.
It is understood that on September 16, 2005, Li Gang bought Lotte xylitol sugar-free chewing gum produced by Lotte (China) Food Co., Ltd. in Jiahe Store, a Wumart hypermarket established by Beijing Jiahe Wumart Commercial Co., Ltd., and later found that the certification mark of "National Dental Protection Group" used on the outer packaging of the product had expired. Li Gang believes that the National Dental Prevention Group does not have the qualification of oral health care products certification, and its certification of Lotte xylitol chewing gum should be illegal. As a seller, Beijing Jiahe Wu Mei Commercial Co., Ltd. has not fulfilled its acceptance obligation and is responsible for the circulation of products.
Li Gang believes that the actions of the National Dental Care Group, Lotte Food Co., Ltd. and Beijing Jiahe Wu Mei Commercial Co., Ltd. all infringe on their legitimate rights and interests as consumers, and requests the court to confirm that the "National Dental Care Group Certification" logo used on Lotte xylitol chewing gum packaging constitutes fraud to consumers; Ordered Lotte (China) Food Co., Ltd. and National Dental Prevention Group to stop false propaganda and eliminate the certification mark on Lotte xylitol chewing gum packaging within the time limit specified by the court; Beijing Jiahe Wu Mei Commercial Co., Ltd. stopped selling Lotte xylitol chewing gum with illegal certification mark and compensated the plaintiff for the purchase price 17.8 yuan.
However, this seemingly simple civil lawsuit is full of twists and turns.
Li Gang said that when he first applied to the Chaoyang court in Beijing for filing a case, Li Gang took the Ministry of Health, his superior authority, as the defendant. Because the Dental Prevention Group did not have the qualification of an independent legal person, the Chaoyang court refused to accept the litigation materials on the grounds that the Ministry of Health could not be the defendant in a civil case. Transferred to Beijing Xicheng Court, Li Gang replaced the Ministry of Health with the National Dental Prevention Group, and was able to file a case on September 28 last year. On June 2nd, 165438+ Li Gang received a court summons, informing him to come to the court on October 8th. Therefore, the court announced that it rejected its ruling against the National Dental Prevention Group, on the grounds that the National Dental Prevention Group did not have the status of an independent legal person and could not independently undertake civil rights and obligations, based on a certificate issued by the Ministry of Health. The court also informed that the remaining cases (defendants Lotte and Wu Mei) had been transferred to Chaoyang Court for trial.
Why does Chaoyang court accept the lawsuit with the Ministry of Health as the defendant? In this regard, the relevant staff of Chaoyang Court told the reporter that after receiving the case file transferred by Xicheng Court, the plaintiff Li Gang filed an application for additional parties, requesting to add the Ministry of Health, the superior competent unit of the National Dental Prevention and Control Team, as the co-defendant of this case, within the scope permitted by law.
Regarding whether the Ministry of Health can bear civil liability, some legal experts said that China's Constitution stipulates that "people who have suffered losses due to violations of civil rights by state organs and state employees have the right to obtain compensation according to the law", thus determining the principle of state compensation in the Constitution. At the same time, the General Principles of the Civil Law also stipulates: "State organs or functionaries who infringe upon the legitimate rights and interests of citizens and legal persons in the course of performing their duties shall bear civil liability". This provides a more direct legal basis for citizens and legal persons to exercise their right to claim compensation from the state.
II. Hao Jinsong v. Beijing Railway Bureau for dining without invoice.
On the afternoon of June 5438+February 1 2006, the Beijing No.1 Intermediate People's Court (hereinafter referred to as "No.1 Intermediate People's Court") made a first-instance judgment on the case that Hao Jinsong sued the Ministry of Railways Spring Festival travel rush Qiangyun Company for violating the price increase procedure, and rejected all the claims of Hao Jinsong.
Hao Jinsong, a 34-year-old native of Shaanxi, is a graduate student majoring in procedural law in China University of Political Science and Law. Since May 2004, he has played nine public interest litigation cases-suing Beijing Metro Operation Company for not issuing invoices for subway toll toilets, suing Beijing Railway Bureau for being charged 2 yuan refund fees without official invoices, and suing Beijing Railway Bureau for asking for invoices for meals on the train. ...
This series of lawsuits made Hao Jinsong a "unruly" in some people's eyes, and also became the focus of media attention. But the lawsuit itself is almost "repeated defeats and repeated wars." "I played nine lawsuits in two years and only won two." Hao Jinsong told China Economic Weekly. According to Huang, an assistant researcher of China Academy of Social Sciences, 42 cases of public interest litigation widely reported by the media since 2000, only 17.5% of the cases won in whole or in part.
"Persistent plaintiff, active media, stable defendant, indifferent court." A legal expert described the embarrassing situation of public interest litigation. However, Hao Jinsong believes that "even losing the case is a good thing. Losing the case can raise the height of the problem and promote the improvement of the work of relevant departments. "
Similar to Hao Jinsong, some lawyers who win less and lose more in public interest litigation are still obsessed with public interest litigation.
Lost again
65438+1October1,in the court of No.1 Intermediate People's Court, Hao Jinsong claimed that on June 65438+1October 2 1 day, 2006, he bought a ticket for the 7095 train from Beijing South Railway Station to Shijingshan South. He later learned that the fare increase was based on the Notice of the Ministry of Railways on Relevant Matters Concerning the Implementation of Government-guided Prices for Some Passenger Trains in Spring Festival travel rush in 2006 (hereinafter referred to as the Spring Festival travel rush Notice). He believes that according to Chinese laws, the notice of Spring Festival travel rush's rush to transport when the Ministry of Railways adjusts the train fare should be reported to the State Council for approval, and at the same time, the relevant departments in the State Council should apply for a price hearing. However, the Ministry of Railways did not follow these regulations, which is against the procedure. Moreover, the fare increase of the 7095 train exceeds the 20% stipulated by the Ministry of Railways.
Accordingly, Hao Jinsong brought the third person, the Ministry of Railways and the Beijing Railway Bureau, to court, requesting the court to confirm that the two defendants' price increases were illegal, and ordered the Ministry of Railways to compensate them for their economic losses, 0.5 yuan.
After trial, the court held that Spring Festival travel rush's rush notice was based on the Notice of the State Planning Commission on Announcing the Implementation Plan of Government-guided Price for Some Passenger Train Fares approved by the State Council (hereinafter referred to as the "Plan"), which did not have the nature of price setting, but only further clarified the plan, so Spring Festival travel rush's rush notice did not need to go through the examination and approval and hearing procedures. Because the Spring Festival travel rush Notice was not recognized as illegal, Hao Jinsong asked the Ministry of Railways to compensate 0.5 yuan for the lack of factual and legal basis, and the court refused to support it.
On the afternoon of February 1, No.1 Intermediate People's Court rejected all Hao Jinsong's claims.
"I was ready to lose the case, but I didn't expect it to be so fast." Hao Jinsong said, "It is unlikely that I will continue to win the appeal, but I will continue to go through the procedure." He revealed that before the formal appeal, relevant experts will be invited to hold a seminar to listen to their opinions on the case.
It's hard to win a lawsuit.
Huang, an assistant researcher of China Academy of Social Sciences, analyzed 42 public interest litigation cases widely reported by the media since 2000, and found that only 17.5% of the cases won in whole or in part. Generally speaking, the proportion of winning public interest litigation is still relatively low.
Hao Jinsong believes that one of the reasons for the low success rate of public interest litigation is that the court is influenced by interest groups, or the understanding of public interest litigation is narrow.
"On June 5438+February, 2004, the Xicheng District Court of Beijing issued a verdict on the case that I sued the Beijing Metro Operation Company for not issuing invoices for paid toilets. I won the case, and the subway company finally issued me two invoices of 50 cents *** 1 yuan. But then I filed almost the same lawsuit, because I didn't get the invoice after eating on the T 109 train, and the Beijing Railway Transport Court ruled that I lost the case. " Hao Jinsong said, for example.
In addition, although MTRC has issued an invoice to Hao Jinsong, it still cannot issue an invoice if someone comes to the toilet. In other words, public interest litigation has lost its reproducibility-one person wins the case, and this judgment is binding on everyone else.
"The reason for this phenomenon is that there is no precedent system in China." Huang believes that the court's judgment is only valid for the parties to this case, and the judge can make a completely opposite ruling on similar cases, which makes the situation of public interest litigation very embarrassing.
Tong Lihua, director of all china lawyers association Youth Rights Committee, believes that the current social concept in China is not conducive to the development of public interest litigation. For the sake of the defendant's power and reputation, many courts often treat the public interest litigation or pure public interest litigation with a large number of plaintiffs negatively.
It is more difficult to file a case.
Like Hao Jinsong, there are still many people who have repeatedly lost in public interest litigation, including Qiu Jiandong, a legal worker in Longyan City, Fujian Province, who was called "the first person in public interest litigation in China" by the media.
Since 1996 sued Longyan Post Office for charging long-distance calls at full price instead of charging them at half price at night, Qiu Jiandong filed 22 public interest lawsuits at 10, of which 4 won the case or urged monopoly enterprises to correct unreasonable system.
"These successful cases are all because the relevant enterprises have obviously violated the express provisions of the State Council or ministries." Qiu Jiandong told China Economic Weekly, "More cases are either not filed or dismissed on the grounds that the plaintiff has no direct interest in the case, or the fees charged by monopoly enterprises are based on documents and policies issued by the administrative department, which is an abstract administrative act. The prosecution was dismissed on the grounds that it was not actionable. " .
The difficulty of filing a case is the biggest obstacle facing public interest litigation at present. Public interest litigation for consumer rights protection and public interest litigation for environmental protection are mostly difficult to enter the proceedings.
For example, in August 2003, Chen Faqing, a farmer from cheng jia cun, Hangping Town, Pujiang County, Zhejiang Province, found that the first-class drinking water source protection zone designated by the Zhejiang provincial government was polluted and did not report it to the relevant departments. In 65438+February of the same year, the Zhejiang Provincial Government and the Provincial Environmental Protection Bureau were sued to the Hangzhou Intermediate People's Court, but the court did not accept his lawsuit; Later, Chen Faqing appealed to the Higher People's Court of Zhejiang Province, which was still rejected.
Glorious defeat
"Losing is losing, but I am not depressed." Hao Jinsong said, "I think the lawsuit itself has achieved my goal. For example, after my lawsuit against the railway came out, although I lost the case in the railway transport court, a teacher from the University of Political Science and Law published an article calling for the abolition of the railway transport court. Through a lost case, I can mention the reorganization of the court, which I didn't think of at that time. "
Lawyer Qiu, the legal adviser of China Consumers Association, also believes that public interest litigation is still glorious despite repeated battles and defeats. "Losing the case can also play an important role in promoting the perfection of China's legal system, because it just reflects the lag and irrationality of some laws and regulations."
For example, in April of 20001year, Mr. Qiao Zhanxiang filed an administrative lawsuit with the Beijing No.1 Intermediate People's Court on the grounds that the Notice of the Ministry of Railways on the Price Increase of Spring Festival travel rush was not approved by the State Council, and took the Ministry of Railways to court, and listed Beijing Railway Bureau, Shanghai Railway Bureau and Guangzhou Railway (Group) Company as third parties. The case was lost in the first instance and the second instance. However, after 2002, the railway price changes are all heard.
"The effect of public interest litigation should be comprehensively analyzed and evaluated from three aspects: legal effect, social effect and social influence." Researcher Huang believes.
Scholars who are full of confidence in public interest litigation include Xu Hui, executive director of the Public Interest Law Research Center of the Institute of Law, Chinese Academy of Social Sciences, and researcher of the Public Interest Law Center of Columbia University Law School. "Public interest litigation is a game between vulnerable groups and strong groups, and losing is expected. However, the significance of public interest litigation lies in constantly speaking out for the vulnerable groups, attracting the attention of the powerful groups in society, and then urging the system to tilt more social resources to these vulnerable groups. Therefore, public interest litigation is a long process of mobilization and education, and we cannot expect a lawsuit to change it. "
Fortunately, Hao Jinsong and Qiu Jiandong are still obsessed with public interest litigation.
"After 10 years of lawsuits, there are two things that make me feel great progress. First, Shanghang County People's Government rewarded me for doing public interest litigation in RMB in 800 yuan, indicating that the government's attitude towards public interest litigation is changing; Second, the public interest litigation system has been written into the Civil Procedure Law and is being revised. In the future, it will give stronger legal support to public interest litigation. " Qiu Jiandong said hopefully.
Noun interpretation
Public interest litigation means that a specific state organ, relevant social groups, organizations and individual citizens bring a lawsuit to the court in accordance with the law to seek judicial relief for acts that violate the law and infringe on the interests of the state and society. The purpose of public interest litigation is not necessarily out of the plaintiff's own interests, but to safeguard the interests of the public; The effect of the judgment is not limited to the litigants, but is binding on all those who are qualified as plaintiffs outside the case.
Three. Hao Jinsong v. Beijing Metro Company (case of toilet charge)
A public interest lawsuit was filed for setting up a toilet charge at the Fuba Line Station of Beijing Metro. Beijing No.1 Intermediate People's Court rejected the appellant and plaintiff Hao Jinsong's request that Beijing Metro Operation Co., Ltd. refund the toilet fee of 50 cents.
It is reported that Hao Jinsong paid 50 cents when he used the toilet in Tiananmen East Station on June 5438+February, 2004. Subsequently, Hao Jinsong filed a lawsuit in the People's Court of Xicheng District, Beijing, requesting the court to order Beijing Metro Operation Co., Ltd. to make a written explanation on the lack of fixed free toilets at Tiananmen East Station of Metro Line 8, and ordered the subway company to refund the toilet fee of 50 cents. Xicheng District People's Court made a first-instance judgment on June 5438+February, 2005, rejecting Hao Jinsong's claim.
Hao Jinsong refused to accept the judgment of the first instance and appealed to the Beijing No.1 Intermediate People's Court.
Hao Jinsong appealed that the subway company violated the principle of fairness in the general principles of civil law in five aspects: first, the design of Fu-Ba Line was flawed and there was no fixed free toilet; Second, in order to make up for design defects, it is necessary to charge for mobile toilets; Third, "it is also a 3 yuan ticket, and passengers on the loop line use the toilet free of charge, while passengers on the No.8 bus have to pay another 50 cents, which violates the principle of fairness in civil law"; Fourth, the Fu-Ba line has set up a fixed toilet for subway staff, but passengers are not allowed to use it; Fifth, the MTRC used taxpayers' money to build toilets, and then charged taxpayers for going to the toilets, which violated the principle of fairness.
In addition, Hao Jinsong emphasized that the subway obviously belongs to the public * * * passenger transport place stipulated by the former State Planning Commission (20065438+0) No.398, and the public * * * toilets should be opened free of charge.
According to the subway company, because no public toilets have been built in nine stations of Fu-Ba Line, in order to solve the practical problem of passengers in the station, the company has set up nine sets of 18 mobile toilets in the non-payment area of the station, and the cost is invested and built by the enterprise. Considering the purchase cost, maintenance and materials during use, the company stipulates that you should charge 50 cents for going to the toilet.
The Beijing No.1 Intermediate People's Court, the court of second instance, held that there were no fixed public toilets in the design and construction of the subway Fuba Line. After the subway company took over the operation, for the convenience of passengers, self-raised funds were used to set up flush-free and environmentally-friendly coin-operated mobile toilets at each operation platform, and the charging amount was determined according to consumption cost and the charging license was obtained. The behavior of the subway operating company did not violate the law. The scope of application of the former State Planning Commission (20065438+0) No.398 document does not include subway operation, and the setting of subway toilets does not belong to the government-funded public toilets referred to in the Beijing Municipal Administration Commission (2002) No.32 document.
The court held that Hao Jinsong argued that the subway company violated the principle of fairness, aiming at the defects in the service facilities design of the public * * * of Metro Line 8, and whether the service facilities in the public * * * places were defective or not related to the rationality and feasibility of the facility design, which should not and could not be adjusted and resolved through civil litigation.
The court also held that Hao Jinsong showed that it was improper as a taxpayer to supervise the use of tax revenue, which was not within the scope of civil litigation adjustment. Hao Jinsong asked the subway company to make a written explanation that there is no fixed toilet on Fu-Ba Line, which is not a way to bear civil liability as stipulated by law.
Lawyer Hao Jinsong said, "I like losing. I believe that only tragedy can touch people's hearts and haunt the world. In the current public interest litigation, only when the lawsuit is lost will the people really recognize the true face of all kinds of people, think about their real environment with heart, and stand up consciously, not being deceived or living in fantasy. In this way, it is conducive to promoting social reform and social progress-I appeal to my respected and brave judge, come on, let's lose all public interest litigation! I have told some reporters that dishonest market seeds have been planted in a corrupt judicial soil. How can I expect it to grow a fair and just plant? Therefore, it is natural that public interest litigation loses, and winning is an exception. "
Four. Li v Beijing subway barrier-free facilities.
Lawyer Li sued the subway company for barrier-free facilities last year and asked the subway to lay barrier-free facilities. On the one hand, the vice chairman of Beijing Disabled Persons' Federation went to support their lawsuit. As a result, although they lost the lawsuit, they sent four letters to the municipal government and the subway company, asking them to increase investment and improve the barrier-free facilities of the Beijing subway, and the result was a big defeat. This case was also considered as a very big event by the Disabled Persons' Federation in 2007, because it was also the first barrier-free lawsuit in China.
Lawyer Li believes: "On the one hand, public interest litigation will bring legal and moral pressure to these infringing units, on the other hand, it will correct their behavior. On the other hand, the biggest role is to warn other units that there will be such a big negative report, so I should carefully evaluate it and even avoid it as much as possible. Of course, it will rise to a higher level and rise to the legislative level. For example, the National People's Congress, the Chinese People's Political Consultative Conference, and even the Ministry of Labor and the Ministry of Education have gradually attached great importance to these discrimination phenomena. In some departmental regulations, the State Council regulations and even laws enacted by the National People's Congress, we all see that the whole law is gradually improving. "