Is China doing its best to protect its citizens against pollution? A case study by Professor Nadia Coggiola.

In her essay, Professor Coggiola explores the tort liability legislation and case law in China related to damages caused by dangerous substances in China, and she focuses her attention on understanding the reasons underlying the differences between the formal declarations written on paper (law in books) and the actual operating rules (law in action). In doing so, therefore, there is need to take into consideration not only black-letter laws and regulations but, instead, whether and how these laws and regulations are actually applied to real cases and how formal legislation is actually implemented by Chinese legal and non-legal institutions. This essay concludes by stressing how much (and how frequently) the implementation of the provisions of laws and regulations regarding damages created by dangerous substances is hindered by a number of obstacles, which are rooted in the inextricable connection between Chinese traditional culture and the present political and social system. The first point to be highlighted is that, theoretically speaking, most Chinese laws are not prescriptive and imperative rules but, rather, as in the case of environmental laws, policy statements and declarations of ideals, which need to be implemented by other laws and regulations. As a consequence, Chinese legislation often appears as ‘dependent’ on the Party’s political directives The second reason of concern is linked to the judiciary. Besides the provisions of the laws and the legal procedures, the outcome of the dispute could be determined by many other factors, such as the possible contacts among the parties, the local government, the judges, and other protagonists. From this viewpoint, the relationship between local government and the judiciary is often detrimental (for example when defendants are, as in cases of polluting industries, the major taxpayers and, therefore, supporters of local economies, or when the same local government is a major shareholder of the defendant industry). On another note, the high costs of litigation can easily discourage the poorer and weaker parties and become a source of abuse. In cases for the compensation of damages to property or health caused by environmental pollution the petitioners encountered a series of juridical hurdles, too, that signals a shift from a strict liability system, where the defendant is liable notwithstanding their lack of fault, but where causation must be proved by the petitioners, to a system where causation between the pollution and the damage could be presumed, unless the defendant proves the contrary. For example, although Article 41 of the Environmental Protection Law provided a strict liability system for the polluters, who could be held liable for damages when (also lawfully) discharged wastewaters or emitted air pollutants or caused other environmental pollution if it is proved that such (even lawful) acts caused any harm, this principle of strict liability has not been fully accepted by the enterprises.