A Collaborative Model for Restorative Compensation in Public Interest Litigation Involving Aquatic Ecology in Guangdong Province, China

Simple Summary

The Guangdong Province is characterized by substantial network of waterways, including those of the Pearl River. The entire watershed of the Pearl River system is situated within the boundaries of six provinces. In consideration of the overarching objective of building a ‘Beautiful Bay Area’ in accordance with the Outline Development Plan for the Guangdong-Hong Kong-Macao Greater Bay Area and the ecological challenges that extend across river basins and regions in Guangdong Province, this paper explores public interest litigation as a mechanism for ensuring eco-justice. The study reviews 95 first-instance (trial) judgements handed down in Guangdong Province between 2018 and 2021. The objective of the study is to evaluate public interest litigation as a means of safeguarding marine ecology in the Greater Bay Area (GBA), China. Cases were categorized for the following: (1) the approach to determining the extent of ecological damage; (2) the procedure used for receiving and auditing restorative compensation; (3) the collaboration between the court and government departments in the management and use of restorative compensation; and (4) the collaborative ‘public-private’ supervision utilized to monitor the implementation of restorative compensation and actual restoration. The review is intended to provide guidance for cooperative opportunities in the large transregional water systems and offshore areas of Mainland China.

Abstract

The Guangdong Province is rich in waterways, including those of the Pearl River. The entire watershed of the Pearl River system spans the territory of six provinces. Considering the overarching objective of building a ‘beautiful Bay Area’ under the guidance of Outline Development Plan for the Guangdong-Hong Kong-Macao Greater Bay Area as well as the ecological problems that span over river basins and regions in Guandong Province, public interest litigation is a useful tool in protecting the environment. Analyzing 95 first-instance (trial) judgements handed down in Guangdong Province between 2018 and 2021, we sought to evaluate public interest litigation as a means of safeguarding aquatic ecology in the Greater Bay Area (GBA), China. Cases were categorized for: firstly, their approach to determining the extent of ecological damage; secondly, the procedure used for receiving and auditing restorative compensation; thirdly, the collaboration between the court and government departments in the management and use of restorative compensation; and fourthly, the collaborative ‘public–private’ supervision utilized to monitor the implementation of restorative compensation and actual restoration. Our insights are intended to provide guidance for cooperative opportunities in the large transregional water systems and offshore areas of mainland China.

1. Introduction

In March 2016, the Chinese government published its 13th Five-Year Plan (2016–2020) for National Economic and Social Development, underscoring its support for Guangdong, Hong Kong and Macao in Pan-Pearl River Delta [1] regional cooperation and promoting the construction of major cooperation platforms in the GBA and inter-provincial areas [2]. The same month, the Chinese State Council issued the Guidelines on Deepening Pan-Pearl River Delta Regional Cooperation, explicitly requiring Guangzhou and Shenzhen to collaborate with Hong Kong and Macao to develop the Greater Bay Area (GBA) into a world-class city cluster [3]. A year later, the GBA Development Forum hosted by the Development Research Centre of the People’s Government of Guangdong Province set up an organizing committee to carry out promotional work, research, surveys and exchanges around the future building of the GBA [4]. In July 2017, the Development Research Centre, together with the HKSAR and Macau SAR governments released the Framework Agreement on Deepening Guangdong-Hong Kong-Macao Cooperation in the Development of the Bay Area, which adopted as a key construction objective ‘building a quality living area that is desirable to live, work in and visit’, which included ‘improving the cooperation mechanism for ecological construction and environmental protection’. Interpreting this objective into practice, public procurators [5] in mainland China have begun to promote public interest litigation within the GBA by acting as ‘guardians’ for the environment. In 2019, the Outline Development Plan of the Central Government and the State Council for the Guangdong-Hong Kong-Macao Greater Bay Area (hereinafter referred to as the GBA Development Outline) [6] was launched. The GBA Development Outline adopted the concept of building an ecological civilization based on the instruction of “以海定陆” (Yi Hai Ding Lu, attach greater importance to determining land by the sea). This concept seeks to establish a uniform mechanism for ecosystem protection, restoration and pollution prevention and control by integrating coordination between the management of land and water resources, promoting integrated protection and sustainable development [7]. The Pearl River ranks second in importance to the Yangtze, accounting for 12% of China’s surface water resources [8] (p. 34). Based on the principles of green development and ecological protection, the GBA Development Outline endorsed initiatives to strengthen the protection of water environments and aquatic animal resources, enhance the conservation of the ecological environment and resources and build a green water network to promote the sustainable development of the GBA. In support of this Outline, the Guangdong Provincial People’s Procuratorate has, over the past 5 years, emphasized public interest litigation as a strategy to promote ecological protection. However, in the GBA, deficiency in cooperation mechanisms for cross-regional and cross-sectoral ecological protection and restoration have led to fragmented local responses to ecological offenses [9] (pp. 8411–8414).

Aiming at aligning with the sustainable construction of the GBA and the development of ecological civilization in China, the National Development and Reform Commission and the Ministry of Natural Resources of the People’s Republic of China jointly issued the Master Plan for the Major Projects of Protection and Restoration of Important National Ecosystems (2021–2035) in 2020. The Plan recognizes serious challenges in terms of aquatic ecological protection and restoration, water quality improvement and biodiversity protection in the GBA and has proposed to promote bay regulation and governance, strengthen the protection and restoration of harmed coastal wetlands and crucial habitats of rare and endangered species, and build ecological corridors and networks for biodiversity protection, which further enhance the protection and restoration of aquatic systems in the Pearl River Delta (PRD) [10].

In 2021, the Outline of the 14th Five-Year Plan for Ecological Civilization Construction of Guangdong Province made specific reference to strengthening the environmental regulatory system by increasing efforts to support ecological public interest litigation initiated by the procuratorate. By reinforcing the regulation of rivers and sea outfalls, coordinating the ecological corridor network of the Dong-jiang River, the Xi-jiang River, the Bei-jiang River and other major river tributaries, and strengthening the restoration of estuarine ecosystems, ‘restorative judicial practice’ is encouraged to be combined with ‘integrated social management’ to better conserve aquatic biological resources [11]. In 2022, the State Council derived the Overall Plan of Nansha of Guangzhou for Deepening the Comprehensive Global Cooperation among Guangdong, Hong Kong and Macao on the basis of the Outline. Taking advantage of the geographical location of Nan-sha District of Guangzhou Municipality, which serves as the only access to the sea of Guangzhou Municipality, the plan provided specific guidance on ‘strengthening ecological and environmental joint construction, prevention and management’, emphasizing the comprehensive management of waters of the Pearl River Estuary and strengthening the protection of ecologically important and sensitive areas [12] to build a demonstration zone for national ecological civilization construction (国家生态文明示范区 Guo Jia Sheng Tai Wen Ming Shi Fan Qu).

1.1. The Legislation and Judicial Process of Public Interest Litigation in Different Municipalities in Guangdong Province

Public interest litigation has been developed from the doctrine of public trust, which originated from the concept of ‘public commons’ (including natural resources) stipulated in the Roman Law [13] (p. 104). In the view of Joseph L. Sax (1970), public trust might serve as the only effective means for citizens to seek legal assistance in resource management matters, and judicial intervention is considered a key characteristic of the public interest doctrine [14] (p. 471). The term ‘public interest law’ was coined in the U.S. in the late 1960s, and the supporters proposed a broad definition encompassing the collective interests of the economically and politically marginalized [15] (pp. 185–186). Public interest litigation encouraged lawyers and citizens to act to minimize threats to the environment and public health [16] (p. 2). Starting in the 1970s, many developing countries published mature laws on environmental protection with detailed contents concerning ecological impact assessment, air, water, marine and noise pollution, as well as resource management including forestry, wildlife and fisheries [17] (p. 40). The South Asian countries (particularly India, Pakistan and Bangladesh) generally progressed from general environmental legislation to mature national legislation that integrated a robust framework [18] (pp. 220–221). China has experienced an increase in public interest litigation practices and legislation, partly because of the transnational migration of legal practices [19] (p. 3).

According to the Supreme People’s Procuratorate, Chinese ‘procuratorial public interest litigation refers to the legal system whereby the people’s procuratorates, as the representative of public interest, issue procuratorial recommendations to relevant subjects or file lawsuits with the people’s courts in accordance with the Civil Procedure Law, the Administrative Litigation Law and other laws, in respect of actions that harm the state interest or public interest, such as the protection of ecological environment and resources, food and drug safety, the protection state-owned property protection, the transfer of the right to the use of the state-owned land, and the rights and interests of martyrs’. After the issue of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Application of Law for Cases regarding Procuratorial Public Interest Litigation (2018) [20], the exercise of criminal incidental civil public interest litigation was strengthened in a combination of civil public interest litigation and criminal incidental civil litigation. A series of legislative documents were published for its smooth implementation under the instruction of the framework of Chinese legal documents (

Table 1. The Level of Issued Authorities and Effectiveness of Legal Documents in mainland China.

Constitution 宪法
Laws 法律 (issued by the Standing Committee of the National People’s Congress)								Military Legislation
Administrative Regulations 行政法规 (issued by the State Council)						Judicial Interpretation 司法解释 (issued by the Supreme People’s Court and the Supreme People’s Procuratorate)	Oversight Regulation 监察法规 (issued by the National Oversight Commission)	Military Regulations
Provincial Local Regulations 省级法规 (issued by the Standing Committee of the Provincial People’s Congress)		Departmental Rules 部 门 规 章 (issued by the National Ministries)	Autonomous regulations and separate regulations 民族自治法规(issued by the People’s Congress of Autonomous Region)	Regulations of Special Economic Zones 经济特区法规 (e.g., Shenzhen)	Pudong New Area Regulations 浦东新区法规 (Shanghai)
Local Regulations of Districted Cities 市级法规	Provincial Local Government Rules 省级规章
								Military Rules
Local Government Rules of Districted Cities 市级规章

below). In 2018, the General Office of the Guangdong Provincial Party Committee and the General Office of the Guangdong Provincial Government, following the instruction on actively implementing public interest litigation, issued the Notice on Supporting the Work of Procuratorial Organs in Bringing Public Interest Litigation [21]. In 2019, the Decision of the Standing Committee of the Guangzhou Municipal People’s Congress on Supporting and Promoting the Work of Procuratorial Organs in Bringing Public Interest Litigation was issued in Guangzhou Municipality. This decision promoted the management of special accounts for ecological compensation, a system for managing ecological restoration and the mechanism for internal collaboration within the offshore areas and waters of the Pearl River Estuary [22]. Subsequently, Guangdong Province took steps to promote public interest litigation mechanisms in the GBA by reforming the provincial centralized jurisdiction mechanism for environmental civil public interest litigation [23].

In July 2020, the Decision of the Standing Committee of the Guangdong Provincial People’s Congress on Strengthening the Work of Procuratorial Public Interest Litigation (hereinafter referred to as 2020 Decision) [24] was issued, seeking to further promote the use of the procuratorial public interest litigation mechanism. The 2020 Decision, made by the Provincial People’s Congress, serves as a legislative document to convey the spirit of the central government and guides the legislative advancement of lower-level municipalities in Guangdong Province. Aimed at creating a beautiful Bay Area, the 2020 Decision emphasized the strategic role of public interest litigation in the ecological construction of the GBA and Guangdong Province and strengthened the cross-regional ecological governance of the GBA and its surrounding areas through the cross-regional collaborative mechanism of public interest litigation. Under the instructions of the 2020 Decision, Shenzhen took advantage of the special economic zone’s legislative power to issue the Provisions of Shenzhen Special Economic Zone on Lawsuit for Public Interest of Ecology and Environment in August 2020 [25]. Shenzhen’s legislation was the first local legislation on ecological protection public interest litigation to be implemented in mainland China. In 2021, the Zhuhai Municipal People’s Congress issued the Decision of the Standing Committee of the Zhuhai Municipal People’s Congress on Strengthening the Work of Procuratorial Public Interest Litigation [26]. This document emphasized the need for collaborative efforts between the judicial, administrative system and procuratorial systems in the area of public interest litigation to promote the protection of social public interest. In the same year, the procuratorial authorities of the She-kou Free Trade Zone in Shenzhen Municipality, Nan-sha Free Trade Zone in Guangzhou Municipality and Heng-qin Free Trade Zone in Zhuhai Municipality jointly signed the Opinions on Collaboration in Prosecution of Public Interest Litigation for Marine Ecological Environmental Protection in the China (Guangdong) Pilot Free Trade Zone, bringing into play synergistic effects to protect aquatic ecology [27]. In April 2021, the People’s Procuratorate of Guangdong Province signed the Opinions on Strengthening Collaborative and Co-operative Work between the Procuratorate and the Military Police with the Guangzhou Military Procuratorate and the Guangdong Maritime Police Bureau, promoting cooperation in combating criminal offenses, jointly initiating public interest litigation for ecological crimes and managing compensation for the restoration of aquatic ecosystems [28].

In January 2023, the Guangzhou Municipal People’s Procuratorate released the White Paper on Public Interest Litigation Procuratorial Work in Guangzhou to improve the integration of public interest litigation in the region [29]. In June 2023, the Guangdong Provincial People’s Court, together with the Guangdong Provincial Department of Water Resources, the Guangdong Provincial People’s Procuratorate, the Guangdong Provincial Department of Public Security and the Guangdong Provincial Department of Justice, issued the Implementation Program for Special Law Enforcement Actions for the Protection of River and Lake Safety in Guangdong Province. Aquatic administrative departments at all levels across Guangdong Province have sought to strengthen cooperation between courts, procuratorates, public security organs and judicial administrative organs in cracking down on criminal offenses involving harm to rivers and lakes and illegal sand mining [30]. In August 2023, the Guangzhou Municipal People’s Procuratorate and the Guangzhou Maritime Court reached a consensus on cooperation in the judicial protection of aquatic ecosystems and jointly signed the Opinions on Strengthening Collaboration on Public Interest Litigation on Marine Natural Resources and Ecosystems. This document stresses cooperation between the court and procuratorate in specific aquatic cases and improves the transfer mechanism of case evidence [31]. These developments demonstrate the influence of ecological public interest litigation in the construction of the rule of law in Guangdong Province.

The first domestic civil public interest litigation case on aquatic ecology initiated by a procuratorate was rewarded with a favorable judgement in the Guangzhou Maritime Court in 2017. The case involved an ecological civil public interest litigation lawsuit and set a precedent in the region for marine criminal incidental civil public interest litigation in the field of protecting water basins and marine ecosystems [32]. From July to August 2016, four men contracted with a ship owner to transport discarded adhesive paper from the pier in Zhong-tang Town, Dongguan Municipality, to the north embankment reclamation of the Hengmen East Outbound Channel for the illegal dumping of waste in aquatic areas. In December 2016, the Zhongshan Municipal Procuratorate supported the Municipal Bureau of Ocean and Fisheries in filing public interest litigation against the individuals involved, requesting the restoration of the waters and compensation for damages. In 2018, the Guangzhou Maritime Court ordered the wrongdoers to pay RMB 300,000 yuan in compensation for the ecological damage caused by their actions. In China, ecological damage was firstly defined in a governmental document issued in 2016, which was titled the Technical Guidelines for Identification and Assessment of Eco-environmental Damage [33]. According to these guidelines, ecological damage mentioned in this judgement might refer to unfavorable changes in environmental elements including waters and other biological elements such as plants, animals and micro-animals, as well as the degradation of ecosystem functions constituted by the above elements, which are caused by the pollution of the environment and the destruction of ecology.

In the construction of a coordinated mechanism for cross-regional public interest litigation, from January 2021 to June 2022, the People’s Procuratorate of Long-gang District of Shenzhen Municipality was responsible for the jurisdiction over marine cases occurring in Long-gang District and Da-peng New District and worked with the relevant departments to carry out a special local action of ‘Guarding the Sea’, focusing on cracking down on the crime of the illegal exploitation of organisms and pollution of the environment while incorporating criminal incidental civil public interest litigation against the harm to the estuary and offshore areas [34]. During this period, the People’s Procuratorate of Long-gang District of Shenzhen Municipality acted in conjunction with the ecological and environmental administrative departments in Shenzhen Municipality, the Shenzhen Institute of Environmental Science and the enforcement department of the local court to use public interest litigation to secure a restoration plan for planting coral and aquatic plants [35] in the waters of Da-peng Bay in Da-peng New District to mitigate the polluting behavior of Shenzhen Municipal Biological Engineering Co. (located in the second industrial area of Tu-yang, Kwai Chung Street, Da-peng New District, Shenzhen, China). The company had dumped Alpha-Terpineol in the Tu-yang River. In addition, the procuratorate collaborated with the court at the same level and the Municipal Bureau of Ecology and Environment to form a joint supervisory front for ecosystem restoration and took the lead in exploring and completing the ecosystem restoration of offshore waters [36]. According to the official statistics, from 2021 to April 2024, the procuratorial organs in Guangzhou Municipality handled 68 cases of public interest litigation and carried out special supervisory actions to control the pollution (mainly including inorganic nitrogen and reactive phosphorus) [37] (p. 10) of the Pearl River [38]. In order to ensure professional support for supervisory actions, the Guangdong Provincial People’s Procuratorate and the South China Institute of Environmental Science of the Ministry of Ecology and Environment established a joint laboratory for the judicial appraisal of public interest litigation for environmental damage in 2024 [39].

1.2. The Cross-Regional Collaboration of Environmental Justice and Aquatic Public Interest Litigation Among the PPRD

Regional environmental justice refers to a fair distribution of rights and interests in the enjoyment of environmental resources and the division of environmental protection obligations between different regions within a country or region. In China, regional environmental justice is considered a crucial part of domestic environmental justice in President Xi’s thoughts on ecological progress, which considers the regional environmental justice will to be realized through the system of ecological compensation [40] (p. 10–11). President Xi stressed the use of planning, legislation, the market and other means to solve the downstream area to the upstream area, the development area to the protection area, the beneficiary area to the damaged area, and the end industry to the source industry’s benefit compensation [41] (p. 149). To some extent, the ecological compensation system regulates conflicting interests between regions in ecological governance. Achieving inter-administrative management is key to enhancing aquatic resource protection and use efficiency [42] (p. 66). However, due to the lack of articulation between the developmental policies of Guangdong Province and other provinces, the ecological protection and economic development of the Pearl River Basin lacks synergy, resulting in a significant gap between the upstream and downstream development of the basin [43] (p. 11). In order to deepen cross-provincial cooperation in ecological public interest litigation, Guangdong Province has conducted several effective explorations of public interest litigation in the upper and middle basins of the main tributaries of the Pearl River (comprising the Bei-jiang River, Dong-jiang River and Xi-jiang River) (

Table 2. Judicial Cooperation Agreements on Ecological Protection with the Pearl River System and Offshore Waters Signed Between the Relevant Authorities at All Levels in Guangdong Province and other Provinces.

Issued Provinces and Relevant Authorities	Official Documents	Year	Protected Target
Zhaoqing Municipal People’s Procuratorate, Guangdong Province; Yunfu Municipal People’s Procuratorate, Guangdong Province; Wuzhou Municipal People’s Procuratorate, Guangxi Zhuang Autonomous Region	Framework Agreement on Public Interest Litigation on Ecological Environment and Resource Protection in the Xi-jiang River Basin	2018	Xi-jiang River
Heyuan Municipal People’s Procuratorate, Guangdong Province; Ganzhou Municipal People’s Procuratorate, Jiangxi Province	Opinions on Establishment of a Collaborative Mechanism for Public Interest Litigation for the Protection of the Ecological Environment and Resources of the Upper Dong-jiang River	2019	Dong-jiang River
Shaoguan Municipal People’s Procuratorate, Guangdong Province; Qingyuan Municipal People’s Procuratorate, Guangdong Province; Ganzhou Municipal People’s Procuratorate, Jiangxi Province; Binzhou Municipal People’s Procuratorate, Hunan Province.	Opinions on the Establishment of the Collaborative Mechanism for Public Interest Litigation for the Protection of the Ecological Environment and Natural Resources in the Upstream and Midstream of the Bei-jiang River Basin	2019	Bei-jiang River
People’s Procuratorate of Guangdong Province; People’s Procuratorate of Guangxi Zhuang Autonomous Region	Opinions of the People’s Procuratorate of Guangdong Province and the People’s Procuratorate of Guangxi Zhuang Autonomous Region on the Collaboration on the Protection of the Ecological Environment and Natural Resources in the Xi-jiang River Basin	2019	Xi-jiang River
People’s Procuratorate of Guangdong Province; People’s Procuratorate of Fujian Province; People’s Procuratorate of Jiangxi Province; Meizhou Municipal People’s Procuratorate, Guangdong Province; Heyuan Municipal People’s Procuratorate, Guangdong Province; Chaozhou Municipal People’s Procuratorate, Guangdong Province; Longyan Municipal People’s Procuratorate, Fujiang Province	Opinions on the Implementation of the Regional Collaboration Mechanism for Public Interest Litigation in Guangdong Province, Fujian Province, Jiangxi Province and Five Municipalities in Above Provinces	2021	Xi-jiang River
People’s Procuratorate of Guangdong Province; People’s Procuratorate of Fujian Province; People’s Procuratorate of Jiangxi Province	Inter-Provincial Collaborative Mechanism for Ecological and Environmental Public Interest Litigation in the Neighbouring Region of Guangdong Province, Fujian Province and Jiangxi Province.	2023	Bei-jiang River
People’s Procuratorate of Jiangxi Province; People’s Procuratorate of Hunan Province; People’s Procuratorate of Guangdong Province	Inter-Provincial Collaborative Mechanism for Ecological and Environmental Public Interest Litigation in the Upstream and Midstream of the Bei-jiang River Basin	2023	Bei-jiang River
Twelve Subordinate Courts of Six Regions in Jiangxi Province and Guangdong Province	Framework Agreement on Judicial Collaboration on Environmental Resources in the Dong-jiang River Basin	2023	Dong-jiang River
Commissioner’s Office of the State Forestry and Grassland Administration in Guangzhou Municipality; Forestry Bureau of Guangdong Province, Guangxi Zhuang Autonomous Region and Hainan Province	Framework Agreement on Strengthening Cooperation on Mangrove Protection in Guangdong Province, Guangxi Zhuang Autonomous Region and Hainan Province	2024	Mangrove
Twenty Procuratorial Authorities of Guangdong Province, Fujian Province, Guangxi Zhuang Autonomous Region and Hainan Province	Co-construction Agreement of Chinese White Dolphin Protection Prosecution Alliance	2024	Chinese White Dolphin
People’s Procuratorate of Guangdong Province; People’s Procuratorate of Guangxi Zhuang Autonomous Region; People’s Procuratorate of Hainan Province	Opinions on the Establishment of a Prosecutorial Collaboration for Public Interest Litigation on Ecological Environmental Protection in the Bei-bu Gulf—Qiong-zhou Strait Region	2024	Bei-bu Gulf—Qiong-zhou Strait Region (Offshore waters)

below). These cooperative explorations have sought to strengthen cross-regional comprehensive management and the protection and restoration of oceans, rivers and lakes, with a view to forging a national example for the judicial protection of ecological public interest with multi-party participation and shared governance.

2. Overview of the First-Instance Judgements of Aquatic Criminal Public Interest Litigation in Nine Cites of the Pearl River Delta in the Greater Bay Area and Empirical Analysis on Restorative Compensation

This section presents the findings of an empirical analysis of aquatic ecosystem related to public interest litigation cases heard in the municipalities located along the Pearl River. The municipalities included in the analysis were Guangzhou, Shenzhen, Zhuhai, Shantou, Foshan, Shaoguan, Heyuan, Meizhou, Huizhou, Shanwei, Dongguan, Zhongshan, Jiangmen, Yangjiang, Zhanjiang, Maoming, Zhaoqing, Qingyuan, Chaozhou, Jieyang and Yunfu. A total of 95 cases heard between 2018 and 2021 as first-instance criminal judgements involving aquatic ecology were obtained from China Judgements Online and PKULAW Database by searching the keywords ‘public interest litigation’ and ‘illegal catching aquatic products’, with the additional supplementary search terms ‘criminal case’ and ‘public interest litigation’ [44,45].

2.1. Geographical Overview of the First-Instance Judgements of Aquatic Criminal Public Interest Litigation in Guangdong Province

The geographical sites of first-instance judgements of aquatic criminal public interest litigation occurring in Guangdong Province can be observed in Figure 1 and

Table 3. Geographical Distribution of the Number of First-Instance Judgements of Marine Criminal Public Interest Litigation in Guangdong Province, 2018–2021.

Municipality	District/County/Street	Involved Waters/ Rivers Basin	Number of First- Instance Judgements of Marine Criminal Public Interest Litigation	Total Number of First-Instance Judgements of Marine Criminal Public Interest Litigation in Various Municipalities and Districts	Percentage of First- Instance Judgement s of Marine Criminal Public Interest Litigation (%)
Guangzhou Municipality	Nan-sha District	The Estuary of the Pearl River	11	15	15.79
	Pan-yu District	Offshore Waters	1
		Bei-jiang River	1
	Yue-xiu District	Captured Area was not specifying	1
	Zeng-cheng District	Dong-jiang River	1
Shenzhen Municipality	/	/	/	/	/
Zhuhai Municipality	Xiang-zhou District	Xi-jiang River	1	1	1.05
Shantou Municipality	/	/	/	/	/
Foshan Municipality	Shun-de District	Xi-jiang River	7	20	21.05
		Bei-jiang River	6
	Nan-hai District	Xi-jiang River	6
	Gao-ming District	Xi-jiang River	1
Shaoguan Municipality	/	/	/	/	/
Heyuan Municipality	/	/	/	/	/
Meizhou Municipality	Mei-xian District	Han-jiang River [46]	1	1	1.05
Huizhou Municipality	Da-ya Bay	Offshore Waters of the Da-ya Bay	6	7	7.37
	Bo-luo County	Dong-jiang River	1
Shanwei Municipality	Shi-Cheng District	Area of South Sea	5	12	12.63
		Offshore Waters	4
	Lu-feng District	Area of South Sea	1
		Offshore Waters	2
Dongguan Municipality	People’s Court of the Second Municipal District	Dong-jiang River	2	3	3.16
		Offshore Waters	1
Zhongshan Municipality	/	/	/	/	/
Jiangmen Municipality	Xin-hui District	Xi-jiang River	6	11	11.58
	Peng-jiang District	Xi-jiang River	3
	Tai-shan City	Offshore Waters	2
Yangjiang Municipality	/	/	/	/	/
Zhanjiang Municipality	Xia-shan District	Area of South Sea	6	13	13.68
		Offshore Waters	2
	Zhanjiang Economic and Technological Development Zone	Offshore Waters	2
	Xu-wen County	Area of South Sea	2
	Po-tou District	Offshore Waters	1
Maoming Municipality	Dian-bai District	Area of South Sea	1	2	2.11
		Offshore Waters	1
Zhaoqing Municipality	Guang-ning County	Bei-jiang River	1	2	2.11
	Feng-kai County	Xi-jiang River	1
Qingyuan Municipality	Qing-cheng District	Bei-jiang River	3	5	5.26
	Yao Autonomous County of Lian-nan	Bei-jiang River	1
	Yang-shan County	Bei-jiang River	1
Chaozhou Municipality	/	/	/	/	/
Jieyang Municipality	Hui-lai County	Offshore Waters	2	2	2.11
Yunfu Municipality	Yu-nan County	Xi-jiang River	1	1	1.05
Total			95	95	100

(below). Of the 95 cases collected, the majority were found to have occurred in Foshan Municipality and Guangzhou Municipality.

2.2. Hearings and Judgements of Aquatic Criminal Public Interest Litigation in Guangdong Province

Regarding the type of offenses charged in the case samples, the most commonly charged offense related to the aquatic environment was the crime of the illegal exploitation of organisms (See

Table 4. Charged Offenses in the 95 First-Instance Judgements of Marine Criminal Public Interest Litigation in Guangdong Province, 2018–2021.

Charged Offenses	Number of First-Instance Judgements of Marine Criminal Public Interest Litigation
The Crime of Illegal Exploitation of Aquatic Organisms	92
The Crime of Polluting Environment (The environmental functional area sensitivity factor of polluted offshore waters is 4, and water was polluted by excessive Chromium (Cr), Nickel (Ni), Cuprum (Cu), Zinc (Zi) and Ferrum (Fe))	1
The Crime of Illegal Mining	1
The Crime of Illegal Purchasing, Transporting and Selling Rare and Endangered Wild Animals and (or) Their Derivatives	1

). A small number of cases involved polluting the environment, illegal mining and illegal purchasing, and transporting and (or) selling rare and endangered wild animals and (or) their derivatives.

Under the procedural rules of public interest litigation and tort liability in China, judges are empowered to impose orders on parties relating to restitution, elimination of threat, compensation for harms, punitive damages and public apologies in criminal incidental civil public interest litigation. In aquatic criminal public interest litigation cases, ecological restoration action and orders for compensation for restoration, loss of resources, etc. are the most common judicial orders utilized to address environmental harms. Among the sample of 95 valid judgements (

Table 5. Forms of Liability imposed in 95 First-Instance Judgement of Marine Criminal Public Interest Litigation in Guangdong Province, 2018–2021.

Charged Offenses	Number of First- Instance Judgement	Restoration Behaviour	Attached Restoration Criteria	Attached Overdue Compensation/Bonds	Compensation for Damages/Restoration Costs	Attached Doubling Interest/ Deferred Payment	Public Apology	Litigation Costs such as Appraisal Costs/Ecological Damage Assessment Costs	Unspecified Content (as a Guidance Case)
The Crime of Illegal Catching Aquatic Products	92	44	30	3	46	19	79	17	1
The Crime of Polluting Environment	1				1		1
The Crime of Illegal Mining	1				1		1
The Crime of Illegal Purchasing, Transporting and Selling Rare and Endangered Wild Animals and (or) Their Derivatives	1				1

below), the judicial responses included (1) the defendant assuming responsibility for restoration (i.e., the restoration of the ecosystem of harmed waters by the release of aquatic organisms); (2) the defendant assuming responsibility for compensation (i.e., the restoration costs for the actual restoration of the ecosystem of harmed waters, or the compensation for ecological damage or the loss of aquatic resources or the value of harmed wild animals); (3) the defendant making a public apology; (4) the defendant assuming responsibility for litigation costs (such as that incurred in an appraisal fee and cost of an ecological damage assessment, which the prosecutor(s) arranged prior to filling the public interest litigation lawsuit); (5) the court proposing additional specific restorative criteria beyond the public interest claims raised by the prosecutors; (6) the court proposing a compensation order on the defendant for late performance; (7) the court proposing a doubled interest payment or deferred payment of the performance attached to the defendant at the expiry of the period for his performance.

2.3. Nature and Receiving of Restorative Compensation of Aquatic Criminal Public Interest Litigation in Guangdong Province

In terms of restorative orders related to aquatic criminal public interest litigation, compensation orders were found to be more likely in certain geographical areas. As shown in

Table 6. Restorative Compensation Awarded to Harmed Waters or River Basins in the 95 First- Instance Judgements of Aquatic Criminal Public Interest Litigation in Guangdong Province, 2018–2021.

Waters/River Basin Involved in the Judgements	Whether Compensation/Restoration Costs Were Awarded	Number of First- Instance Judgements of Marine Criminal Public Interest Litigation	Specific Ecological Restoration Order
The Bei-jiang River Basin	Compensation/Restoration Costs	5	8
	No	8
The Xi-jiang River Basin	Compensation/Restoration Costs	16	9
	No/Not Specified	10
The Dong-jiang River Basin	Compensation/Restoration Costs	1	3
	No	3
The Estuary of the Pearl River	Compensation/Restoration Costs	2	9
	No	9
The Offshore Waters (including the Area of South Sea and the Da-ya Bay)	Compensation/Restoration Costs	23	15
	No	16
The Han-jiang River	Compensation/Restoration Costs	1	0
	No	0
Relevant area not specified	Compensation/Restoration Costs	1	0
	No	0

, judgements delivered for offenses occurring in the Xi-jiang River Basin had the highest probability of receiving compensation for ecological damage or restoration costs (accounting for 62% of 26 cases), followed by the judgements in which ecological damage occurred in offshore waters (accounting for 59% of 49 cases), with those judgements in which ecological damage occurred in the Bei-jiang River Basin (accounting for 38% of 13 cases) and the Dong-jiang River Basin (accounting for 25% of 4 cases). In cases where no compensation or restoration costs were awarded, judges often ordered specific ecological restorative behavior, usually requiring the release of certain numbers and sizes of specific fish species.

Table 7. Nature of Restorative Compensation Awarded in the 95 First-Instance Judgements of Marine Criminal Public Interest Litigation in Guangdong Province, 2018–2021.

Nature of Restorative Compensation Awarded in the First-Instance Judgements of Aquatic Criminal Public Interest Litigation	Number of First-Instance of Aquatic Criminal Public Interest Litigation
Ecological Restoration Costs	24
Costs of Harms to National Fishery Resources	10
Compensation for Ecological Damage	10
Economic Loss of Ecological Resources	3
Costs of Ecological Environment Loss	1
Value of Rare and Endangered Aquatic Wild Animals	1

sets out the nature of orders made for restorative compensation for aquatic criminal public interest litigation as defined by the judgement samples.

The cases demonstrated a wide variety of recipients of restorative compensation for aquatic criminal public interest litigation, with recipients cutting across both the judicial system and the administrative system.

Table 8. Nature of Restorative Compensation Awarded in the First-Instance Judgements of Aquatic Criminal Public Interest Litigation in Guangdong Province, 2018–2021.

Units/Accounts/Targets Specifically Receiving Restorative Compensation		Number of First- Instance Judgements of Aquatic Criminal Public Interest Litigation	The proportion of First-Instance Judgements of Aquatic Criminal Public Interest Litigation that Resulted in Claims for Compensation (%)
Treasury		4	8.16
Judicial Authorities	Procuratorial Authority	20	40.82
	Court	1	2.04
Administrative Departments	Finance Bureau	1	2.04
	Fisheries Department	2	4.08
	Agricultural Department	1	2.04
Public Interest Litigation Compensation Account(s)	Municipal Account	2	4.06
	District Account	1	2.04
Not Identified Specific Recipients of Restorative Compensation		17	34.70
Total		49	100.00

shows the specific recipients of restorative compensation as determined by the courts, with restorative compensation paid to the dedicated accounts for public interest litigation restorative compensation (for all levels) accounting for 6%; compensation paid to the state treasury accounting for 8%; compensation paid to the judicial authorities (i.e., subordinate procuratorate and court) accounting for 43%; and compensation paid to the administrative authorities (including the administrative departments responsible for the management of fishery resources and other administrative departments responsible for the financial management) accounting for 8%. In total, 35% of samples did not specify the recipients of restorative compensation in the judgements.

2.4. Appropriate Recipients for Restorative Compensation in Public Interest Litigation

An important question that arises from the practice studied is whether the procuratorate, which acts as the prosecutor of public interest litigation, should be an eligible recipient of restorative compensation [47,48,49,50]. Guidance on this issue can be drawn from Article 9 of the Constitution of the People’s Republic of China (2018), which provides that ‘natural resources are owned by the state, that is, by the whole people’; ‘the state ensures the rational use of natural resources and protects rare animals and plants’; and ‘appropriation or damaging of natural resources by any organization or individual by whatever means is prohibited’. These words suggest that the governments and relevant administrative authorities entrusted by the public have the power to manage and protect natural resources. If the state or government abuses its power or fails in its duty as a good administrator or harms the interests of the principal (the public), or fails to treat the majority of beneficiaries fairly, then citizens can assert their right to ask the state to fulfil its duty as a trustee to protect and improve the ecology for all citizens [51] (p. 150). In China, the procuratorate both represents the public against illegal acts that harm public interest and acts a legal supervisory authority. To some extent, the public interest litigation initiated by the prosecutors might be regarded as the right to prosecute, entrusted by the public. The prosecutors may bring public interest litigation to the court on the basis of public trust when the crime of harming the environment and ecology occurred. As the prosecutor of public interest litigation and the legal representative of public interest, the prosecutor is clearly ineligible to receive restorative compensation. However, it is difficult to determine the ultimate beneficiary of restorative compensation when it is paid into accounts set up by administrative authorities such as the Finance Bureau and Fisheries Department, or the regular account of the state treasury. These departments do not bear the responsibility for restoring harms against the public interest. Further, the people’s court, as an adjudicator in relevant cases, should maintain an objective and neutral attitude in the litigation progress. Allowing the court to receive restorative compensation funding presents a conflict of interest. Currently, the management and use of restorative compensation is not clearly regulated by any relevant legislation in China. Consequently, the judgements we have identified have established their own practices in determining the recipients of compensation for the restoration of aquatic organisms and the aquatic ecosystem.

3. A Basin-Wide Collaborative Model for Restoration and Compensation in Aquatic Criminal Public Interest Litigation in Guangdong Province Under the PPRD Perspective

Judicial interpretation and practices utilized in cross-regional marine criminal public interest litigation have yet to reach a consensus on the question of the most appropriate recipients for and usage of restorative compensation. Various regions of Guangdong Province have begun to explore the issues around the problem, but the management and use of restorative compensation for aquatic criminal public interest litigation and the supervision of relevant restoration activities have seldom been clarified in Chinese judgements.

The traditional sentencing aims of the Criminal Law of the People’s Republic of China for offenses harming the ecosystem are specific and general deterrence (specific deterrence of the defendants and general education of the public). However, in the case of offenses that have caused harm to the environment, it is difficult to counter the actions of the defendant through traditional forms of criminal liability (e.g., imprisonment and fines) [52] (p. 83). Damages caused by harms to the environment/ecosystem may be geographically widespread and have long-lasting impacts [53] (p. 25). The restoration of the environment, to the extent possible, is the primary goal of environmental public interest litigation. However, the environment is rarely restored to the state it was in before the harm was sustained [54] (p. 20). In the case of irreversible damage to the environment, public interest litigation may instead require the wrongdoer to pay compensation to supplement the loss of ecological benefits [55] (p. 94). Through the application of criminal public interest litigation as a supplement to prosecution for criminal offense, the procuratorate can seek to address this deficiency by pursuing the costs of restoring damaged aquatic ecosystems from the defendant as ecological compensation liability. Financial compensation from those who have damaged the environment can not only initiate maintenance and prevent further ecological damage from occurring but also helps to internalize restoration costs [56] (p. 38).

As to the question of who the rightful recipient of restoration compensation should be, the public interest in protecting aquatic ecosystems renders the state, as the representative of the people, the most eligible recipient of restorative compensation. In the PRC, state ownership of natural resources in China is characterized by two features: Firstly, it is highly public-spirited, and secondly, natural resources are not possessed and utilized by specific subjects, rendering it impossible to determine their specific ownership. Accordingly, the state must take the lead in the use and management of natural resources [57] (p. 25). However, which arm of the state receives the compensation is increasingly important to clarify. With regards to the management of restorative compensation in aquatic criminal public interest litigation cases, we suggest that the Management Measures for the Use of Special Funds for Public Interest Litigation in Foshan Municipality (for Trial Implementation), as set forth by Foshan Municipality in 2019, can serve as a useful point for reference. These measures suggest that a public interest litigation account for restorative compensation (i.e., a public interest litigation fund) should be earmarked to receive compensation in a uniform manner, rather than allowing compensation to be passed directly to the state treasury without distinction.

We also suggest that specific reference could be made to the Working Methods on Strengthening the Articulation Mechanism of Ecological Environmental Damages to the Procuratorial Public Interest Litigation (for Trial Implementation), jointly signed by the Municipal Bureau of Ecology and Environment of Zhongshan Municipality and the Zhongshan Municipal People’s Procuratorate in 2022 [58]. According to this regulation, punitive damages for ecological damage may be ordered alongside the costs of restoration [59]. In a recent case concerning the illegal hunting of wild birds, initiated by the People’s Procuratorate of Zeng-cheng, District of Guangzhou Municipality, punitive damages were ordered alongside the ecological compensation. The case applied Article 1232 of Civil Code of the People’s Republic of China (2021) on punitive damages for ecological damage to combat wildlife crimes [60]. The defendants were liable not only for ecological damage compensation of RMB 10,000 yuan for the birds captured but also for punitive damages of three times the value of the birds: RMB 30,000 yuan.

3.1. Deepening the ‘Administrative–Judicial’ Interaction and Cooperation on the Restorative Compensation for Basin-Wide Aquatic Criminal Public Interest Litigation in the Greater Bay Area

In addition to the establishment of an earmarked account to receive restorative compensation for aquatic criminal public interest litigation, we suggest the municipal administrative authority responsible for protecting the aquatic ecosystems and restoring the degraded areas where the crimes occurred should be considered the primary statutory manager of the account. The authority concerned is likely to have the best understanding of the ecological situation before and after the harm to the aquatic ecosystem occurred and the measures required to address the damage caused.

In cross-regional cases of aquatic criminal public interest litigation, we consider that in addition to the administrative departments responsible for the management, supervision and restoration of the waters and oceans, the enforcement department of the court should be required to assist in achieving the judge’s order. Within the jurisdiction of Guangdong Province, the six intermediate courts in Guangzhou Municipality, Shenzhen Municipality, Zhuhai Municipality, Shantou Municipality, Zhanjiang Municipality and Qingyuan Municipality, as well as the Guangzhou Marine Court, have centralized jurisdiction over cross-regional aquatic criminal public interest litigation in Guangdong Province. Their cooperation can help to form a synergistic enforcement model between the executive department of the courts with centralized jurisdiction and the administrative departments responsible for the management of inland and coastal waters.

In cases of ecological damage occurring in the inter-provincial and inter-basin area, the six intermediate courts in Guangdong Province may choose to hear the case in accordance with the geographical area through which the main part of the river flows and on the basis of their centralized jurisdiction. Affected provinces should cooperate over cross-regional traceability and restoration activities. On this basis, we recommended that the Intermediate People’s Court of Qingyuan Municipality seeks to work with the People’s Court of Zi-xing City of Binzhou Municipality in Hunan Province [61], the Intermediate People’s Court of Longyan Municipality in Fujian Province [62], and the Intermediate People’s Court of Ganzhou Municipality in Jiangxi Province to jointly carry out ecological restoration in cases effecting the upper and middle streams of the Bei-jiang River. Cooperation between courts is necessary for the long-term protection of the mainstream of the Bei-jiang River and other tributaries in the Pearl River Drainage and Guangdong, as well as the adjunct coastal waters. The implementation of this model could provide a template for the development of inter-provincial judicial collaboration in the Xi-jiang River Basin.

3.2. Innovations in ‘Public–Private’ Regulatory and Supervisory Collaboration on the Restorative Compensation for Basin-Wide Aquatic Criminal Public Interest Litigation in Guangdong Province

In practice, a number of jurisdictions have begun to adopt the practice of cross-regional management cases involving damage to the aquatic ecosystem (including criminal incidental civil public interest litigation), resulting in decisions that have strengthened the cross-basin judicial protection of the Pearl River Drainage [63]. As discussed in the previous section, collaborative practices have begun within Guangdong Province and within the Pearl River Basin. The inter- and intra-provincial collaborative system not only refers to the multi-sectoral jointness of litigation and enforcement supervision between judicial authorities and administrative departments, but also includes exploring attempts at cooperation between judicial authorities, universities and scientific research institutions in solving practical problems in appraisal and restoration activities in ecological public interest litigation.

In this area, procuratorates that have initiated public interest petitions can invite scientific research institutions and experts in the field of aquatic ecology and water management to jointly supervise restoration activities. Scientific research institutions within the area where the relevant marine crimes occurred should be invited to apply their skills and expertise to assist the procuratorate in making professional judgements as to what actions should be supported. Practical and technical cooperation between those working in the procuratorial system and scientific research institutions have the potential to promote effective knowledge exchange, benefiting the supervision of restorative compensation for aquatic criminal public interest litigation in the Pearl River Basin.

4. Conclusions

Cross-jurisdictional aquatic crimes require the cooperation of courts, administrative departments and scientific experts to implement effective restoration practices in multiple municipalities or across provincial boundaries. To this end, in Guangdong Province, the executive departments of the courts with centralized jurisdiction are in a unique position to provide a model for the rest of China by not only effectively assisting in restoration of inland and coastal waters, but by acting a connecting bridge between the procuratorate and the administrative departments responsible for the use of compensation awards. China is a country with over 1500 rivers, many of which pass through multiple provinces. Our study of judgements handed down between 2018 and 2021 in China’s Greater Bay Area has demonstrated that use of public interest litigation to safeguard aquatic ecology is increasing. However, confusion over who the appropriate body should be to receive restorative compensation, the types of restorative orders necessary and the necessity of cross-jurisdictional cooperation may undermine the effectiveness of this important tool in the protection of China’s environment.

This study was limited by the fact that not all criminal judgements have been recorded on China Judgements Online and PKULAW Database and not all collected judgements provided sufficient details as to who had been awarded restorative compensation or restoration costs and who was made responsible for managing and supervising the use of compensation. Future empirical studies of aquatic ecology protection may clarify these concerns through field observation and corresponding interviews with relevant administrative departments.