Research On The System Of The Group Litigation

As the third central-committee of the eleventh CPC, great changes have taken place both on social and economic institutions. Our country is aiming at socialist market economic system, which develops deep and wide relationships between social subjects. The law of social and economic phenomena decides the increases of the conflicts. Therefore, a conduct or a fact, which makes many legal subjects include the conflict becomes more and more, such as the agricultural production responsibility system makes many peasants harmed; the increase of the stock companies makes many shareholder harmed; the environmental pollution makes many people and factories harmed, and so on. These examples have very wide relationship with people, so if have an action in court, it inevitably causes a group litigation cases.Group litigation is a kind of suit which aims at solve the conflict that has a relationship with many people, besides the collateral lawsuit. Many countries have this kind of lawsuit, such as class action in America, commissarial lawsuit in England, selective party lawsuit in Japan, and class lawsuit in German. In China's civil procedure law, we adopt with the commissarial lawsuit.In these years, the tendency of group litigation in China has these characteristics: for the first, the conflict is related with almost every field ofthe society and economics. On the 80th of 20th century, it is just related with the contract and production fields, but in the several years, it expands to the environment, social effects of pollution, consumer, and civil right and so on. For the second, the number of the victim is increasing. In the development of the economics, as we use the new industrial instrument, production and sale method, it makes tens of thousands of people harmed; for the third, the harm of some group litigation such as environmental pollution always has a wide scope; for the fourth, in near two years, some group litigation makes the society unstable, such as the poisonous rice, poisonous wine, bad milk powder accident, and so on. In the face of these new conditions, our commissarial lawsuit institution has a very great challenge, especially for the function of group lawsuit procedure. This paper gives an analysis on the historical origin, procedural model, judicial process of group litigation, and provides a renewed research on group litigation through theoretical and practical facets.It divides into six parts as follow:For the preface, firstly, I introduce the value of the research. For on side, it gives definite differences between group litigation and any other lawsuits, such as the collateral lawsuit; on the other side, it can enrich the theoretical system of our civil procedural law. And it also has a great practical value, because of its intimate relationship with the daily life. It is a benefit for our amendment on civil procedure law. Secondly, I introduce the research methods, which includes diverse methodologies, such as historical, comparative, economic, positive methods. Thirdly, I give a brief view of the contents of the paper.For the first chapter, I analyze the concept and characteristics of the group litigation, and differences between the group litigation and other lawsuit. Group litigation is a kind of lawsuit, which aims at solving the conflict related with many people, besides the collateral lawsuit. It has the characteristics as follows. There are more than two person in any party, and can't be solved by collateral lawsuit; the group subjects are suppositional; thepath to fulfill subjects' rights is indirect; the subject of the judgment is expansive. Group litigation has some similar characteristics with other party lawsuit, so it is easily confused. In this part, I give a very deep analysis on the comparison between the group litigation and other lawsuits, such as collateral, experimental, model lawsuit.For the second chapter, I give a analysis on the origin of the group litigation. Group litigation originates from commissarial lawsuit in the equity of England. In the influence of it, America sets up the class action institution, and German sets up class litigation, and Japan sets up selective party lawsuit. 1 introduce the group litigation mainly exemplified by America and Japan. In America, it has these features: the number and scope of the group case is increasing; the intervention of judicial power is strengthening; scholars have many worry about the abuse of the group litigation; the reconcilement of the group litigation is becoming more and more welcome. In Japan, it has these features: besides litigation, there are some special institutions for the conflicts about social effects of pollution; when group litigation takes place, the victims always form into small groups to take part in the suit, or the court divides the victims into small groups; the government is always a codefendant in the selective party lawsuit; reconcilement is the mainly solution for the group conflict in practice; the court generally doesn't hold the plaintiff's prospective claims. Meanwhile, I make a tendency to the group litigation in the near future, and consider that it will incline to have the similar structure and nature of the litigation model; the scope of the party will become larger and larger; and also, the form of the group litigation will become more diverse and typical.For the third chapter, I mainly describe the types of the group litigation, and give a comparative research on several typical group litigations. In many countries and regions, the well-known models of group litigation are class action, class lawsuit, selective lawsuit, and commissarial lawsuit. Class action considers the indefinite subjects who have the same factual or legal relationship with each other as a group, and then, suit by one member of thegroup; in selective party lawsuit model, the subjects select their delegate who has the abilities to finish the accomplishment, and then consign him to take part in the suit. It is a fashion of expansion of the parties in nature. In Class lawsuit, subjects who have the interests with the lawsuit entrust their procedural rights to a social organization, and the object of the judgment is the social organization, but it can give the indirect interest to the members.For the fourth chapter, I discuss the basic theoretical problems of the group litigation institution. For the first, I consider the group litigation has many functions, such as rights remedying, conflict solving absolutely, public policy making, substantive rights or rules formulating, social stimulating, and judicial efficiency functions. For the second, on the problem about the co-interest, I consider the American model and Chinese model are effective ones, and we should consult the common collateral lawsuit as the standard to judge whether there are collective interests, expand the contents of the collective interests, enlarge the applicable scope, and finally, make more and more people can take good use of the group lawsuit institutions. For the third, on the problem about the party's qualification, I consider that the standard wholly based on the administrative or manageable right does not accord with the reality and the original aim of the group lawsuit, so we should enlarge the scope of the party's qualification. For the fifth, on the burden of the lawsuit costs, I consider that as for the unselective costs, such as the cost for the court accept the case, it should be regulated the standard, limits, and subtraction methods of the lawsuit in the legislation; as for the selective costs, in order to decrease the burden of the parties, we can adopt with the method of recompensing by the loser, punitive compensation, delivering the cost, and so on.For the fifth chapter, I discuss the group litigation in China, the establishment and modification of the commissarial lawsuit. By comparison of the commissarial lawsuit, group litigation, and the selective party lawsuit, I consider that we should try to combine with the litigant entrustment and thelitigant representative institutions. The status quo of commissarial lawsuit in China is unsatisfied. I conclude the reasons as follows. On the legislative side, most rules are abstract, and lack of applicability; on the judicial side, the application of commissarial lawsuit has many problems in practice. For example, most cases are refused by court; hitchhike phenomenon makes the proceeding very difficult; the hating-suit idea influences the scope and validity of the legal aid. So we should modify our commissarial lawsuit institution from plural sides, such as the applied condition, court's jurisdiction, burden of costs, examine and accept for the case, burden of proof, enforcement of judgment and distribution of the property, appeal and retrial, and so on.