First-Instance Judgment Passed in Hainan's First Case of Marine Administrative Public Interest Litigation

Last update time:2019-11-05 14:59:04

 

 

On the morning of 19 September, Haikou Maritime Court passed a judgment in the marine administrative public interest litigation case brought by Wenchang City People's Procuratorate, plaintiff in the public interest litigation, against the defendant, Wenchang Agricultural and Rural Bureau. It was the first marine administrative public interest litigation case in Hainan. To hear the case, Haikou Maritime Court duly formed a collegial bench of seven, including people’s assessors from relevant industries such as marine resources research and marine industry development. Through the hearing, Haikou Maritime Court duly found that the defendant failed to fulfil its legal duties in relation to the illegal set nets in the waters under its supervision and such failure was a violation of the law. The court then ordered the defendant to continue to fulfil its legal duties within six months.

 

The plaintiff, Wenchang City People's Procuratorate, claimed that it found a large quantity of set nets (which were examined and identified as prohibited fishing tackle) in the waters near Fengjiawan, Wenchang on 3 April 2018, and subsequently made a pre-litigation Procuratorial Recommendation to the defendant, Wenchang Agricultural and Rural Bureau. It requested the defendant to duly clear up those set nets below the smallest permissible mesh size in its supervised waters and to impose penalties for illegal fishing. The defendant conducted a special clear-up action, and on 25 June replied that it had found 101 set nets, of which 67 had been removed by the fishmen under its persuasion and 31 had been cleared up by force, and that 3 fishing boats operating with such set nets had been seized and relevant penalties had been imposed. However, the plaintiff followed through the action and inspected the scene on multiple occasions and found illegal set nets remaining in the waters in dispute. The plaintiff held that the way the defendant handled the situation, namely by persuading the fishmen to take willing clear-up actions, was not in compliance with law. It did not preserve evidence of illegal acts, or hand over any suspected offender of crimes to competent authorities. The plaintiff thus brought an action before Haikou Maritime Court on the grounds that the defendant had failed to fulfil its legal duties.

 

The defendant, Wenchang Agricultural and Rural Bureau, defended that it had strictly and duly fulfilled its legal duties as required in the pre-litigation Procuratorial Recommendation, and had fully cleared up the illegal fishing situation in its supervised waters. However, illegal fishing activities could not be eradicated as they were repetitive, mobile and persistent. The voluntary removal of the 67 set nets by the fishmen at the request of the defendant was measures taken to clear up the set nets as soon as practicable when it was impossible to ascertain the ownership of the nets. The defendant held that in its operations against the illegal fishing activities, it did not fail to duly investigate or collect evidence, or fail to preserve evidence that might be lost. It thus requested the court to duly dismiss the plaintiff’s claims.

 

Through trial, Haikou Maritime Court held that according to the provisions in the Fisheries Law of the People's Republic of China, it was illegal for fishermen to fish during the closed season or with set nets below the smallest permissible mesh size. The defendant as fishery administration authorities should have taken compulsory measures to clear up the set nets and conducted due investigations and evidence preservation when it found the illegal fishing operations by fishermen with set nets during the closed season. It should have imposed administrative penalties on any identified offenders, and in case of any crime the offenders should be held legally liable. In its operations against the illegal set nets, the defendant did not properly fulfil its supervisory duties in strict compliance with the law. It failed to preserve relevant evidence and as a result it was impossible to ascertain whether the set nets in dispute had been cleared up, and whether the fishing operations with the set nets were criminal. Due to its improper or illegal measures and law enforcement procedures, widespread illegal fishing operations persisted in the waters under its supervision, no timely or effective protection of the fishery resources was provided, and public interest was thus continually infringed. Accordingly, Haikou Maritime Court held that the defendant’s failure to fulfil its legal duties in relation to the illegal set nets in its supervised waters was a violation of the law; as illegal set nets still remained in the waters under the supervision of the defendant, it was objective and practical to request the defendant to continue to fulfil its legal duties of investigation and imposing penalties in respect of the set nets. The defendant was thus ordered to continue to fulfil its legal duties within six months.