I.Public interest litigation: a conceptual discussion

1.Public interest litigation and related concepts

It is generally believed that public interest litigation, from the etymon perspective, can be traced back to the Roman Empire. According to the formula procedure of Roman law, private litigations, or actions privatae, were aimed at protecting individual rights and could only be submitted by certain individuals, whereas public interest litigations, or actions publicae populares, were litigations seeking to safeguard public interests of the society and could be submitted by any citizen unless stipulated otherwise by law.

Public interest litigations in the modern sense originated in the United States in the 1960s, when, amid challenges to many social systems in the wake of drastic social changes such as the Civil Rights Movement and the Vietnam War, many public interest groups were formed, which, represented by lawyers and jurisconsults avid for social reforms, worked to protect the environment and safeguard rights of consumers, women, the colored people and minors, as well as many other public interests, and called for new and fairer social systems. The litigations submitted for these objectives were called public interest litigations.

In addition, the United States has a so-called "private attorney general" system, under which the US Congress has passed laws authorizing an individual or group to bring a lawsuit that is in the public interest, and to sue lawbreaking or non-performing officials.

The main characteristics of the Roman and US public interest litigation systems lie in: 1, a wide variety of suits; 2, diverse background of litigants, who can be taxpayers, consumers, environment consumers, environmental protection organizations and groups, alongside minister of justice and chief procurator; 3, litigation can be filed against an action that has already caused damages or one with potential harm; 4, the litigation, when it proves legal and wins support, can be awarded; 5, the role of public interest litigation is to supplement, rather than replace, law enforcement of state organs.

Japan also has a civil action system, which refers to litigations, submitted by any electoral or any party that is not seeking personal interest, that bring to justice the lawbreaking government bodies or local government organizations.

Similarly, the ultra vires litigation of France is a means of relief to the plaintiff whose rights and interests have been harmed by the administrative organizations' decisions and who pleads for a court's review to check the legality of such decisions and nullify unlawful decisions.

After a research into prevalent theories in China and relevant systems in other countries, it can be assumed that public interest litigation is filed, by designated government organizations, citizens, juristic person or any other party, to the court of law for the protection of "public interest", regardless of the relations between the party that files the litigation and the administrative or civil behavior under litigation. Public interest litigation includes administrative public interest litigation and civil public interest litigation.

Other concepts related to public interest litigation include impact litigation and structural legal aid, among others.

Impact litigation is also an imported concept, though the idea is more often known in China to have originated from the 2005 nomination of the country's 10 most influential litigations, an event co-hosted by Legal Daily and All China Lawyers' Association.

These litigations have had a far-reaching social influence in China. They are widely known or have caused widespread attention among the public and, under the concerted efforts of the legal practitioners, directly or indirectly promoted legal system reforms and triggered or shaped the citizens' faith in the rule of law.

Among the 10 most influential litigations were the penal action against She Xianglin, who was wrongly jailed for "killing" his wife, and the apparent public interest litigation filed by Hao Jinsong, a legal practitioner who sued railway authorities for not providing invoices.

"Structural legal aid", prevalent in some Southeast Asian countries, refers to the legal aid sponsored by non-governmental organizations or individuals to bring about structural changes to remedy injustice through the hearing or judgment of one typical case and subsequently eliminate or prevent similar unfair phenomena arising out of such injustice.

2. Public interest and the litigation system

Further definition of the general concept of public interest litigation involves the definitions of public interest and litigation rights.

Public interest refers to the well-being of unspecified groups in a given society. The well-being of the unspecific majority is often ensured through a democratic legislation process, whereas common and more important personal interests – those involving life, health and property — are guaranteed only through penal law and often excluded from the range of public interest litigation. What's most prone to violation, however, is the well-being of the unspecific minority or disadvantaged social groups.

The concrete forms of public interest include interest in case of consumers' rights, environment protection, public services and administrative incompetence. Preservation of public interest should fall under the category of public interest litigation, whether or not the litigants' own interest is included in the "public interest" and has been violated. The litigation therefore includes litigation for private interest and that for others' interest. Under China's current circumstances, however, the former is more likely to be filed at courts, taking into consideration the qualification of litigants.

Besides the qualifications of litigants, several other issues of the litigation system need to be considered: 1. As the target of the dispute concerns public interest, the plaintiff's request should be mainly to confirm and form litigation rather than to request given litigation. The plaintiff should also be restricted on substantial problems of the dispute, such as seeking reconciliation or withdrawal of lawsuit; 2. Risk of losing the suit should be set to balance the situation and prevent misuse of litigation and waste of social resources, whereas litigation fees should be partially exempted and a proportion of awards should be set for winners of lawsuits; 3. To ensure better effects of public interest litigation, citizens and social bodies should be called for to promote the scope and depth of judicial review.