Group Action Research

In recent years, with high speed development of economy and transforming of the society, the group dispute and group action assume the unceasing rise in our country. Its great quantity, broad scope, big processing difficulty has surpassed formerly any time. How to prevent and solve various group disputes has become an important task to maintain the social stability and construct a harmonious society. It is also a question which theory and the practical circles are exploring in our country. The author conducted a comparative study of theory and practice of group actions in domestic and foreign countries in this article. Especially on the basis of analysis to group action legislation and the judicial practice in our country, the author profited from the overseas newest achievement and unified China's national condition. Then the author expected to propose a complete preliminary frame of group actions system reform in our country.Besides the introductory remarks, the full text is consisted of five chapters. And the basic content is as follows:In the introductory remarks, the author has carried on an elaboration to the trend of development of group action system in the world, present situation and the trend of group dispute and group action in China, as well as macroscopic question, such as research condition about group action in our country, etc. In this part, the author first carried on an analysis from the tendency of development of group action system, then summarized the trend of development of group action system in various countries. Secondly, the author analyzed present situation and the trend of reform of group dispute and group action in our country. Apart from the social background of mass production, mass consumption and social vicissitude, reforming and benefit gambling is more direct cause to group dispute in our country in present stage. To solve these disputes, besides over-haul and the construction of pluralistic dispute resolution system, to pay attention to the function of formalization group dispute system and to display the value and function of the group action fully in the civil procedural domain should become the trend of development of ours group action. Finally, this article analyzed that research to group dispute and group action presents a different characteristic in theory and the practical realm in China adapting to the characteristic of group dispute and group action in the transition period. Especially after 2000, the related study on this question has changed enormously in scale, depth and pluralistic method, etc.To provide and lay a solid foundation to later research, the first chapter carried on a more systematic discussion to the basic theory of group action. In this chapter, the author firstly carded on the limits to the narrow sense and the broad sense of concept of group lawsuit. Then, the author carried on a research to historical development of group action system in main countries of the world. Finally, the author analyzed the value and function of group action combined judicial practice in various countries and summarized the function of group action in three aspects: To enhance the lawsuit benefit, maintains unification of law application; Pursue public welfare and strengthen substantive law implementation; Protect weak group's legitimate fights and interests, promote the construction of harmonious society. In this part of research, author filed and has proven the function of group action in protecting weak group's legitimate rights and interests and promoting construction of harmonious society for the first time. And the author clear about the value and function of the group action which we say mainly refers to the formalization action, namely the value and the function in narrow sense. This is why the author emphasize we should pay attention to the formalization action in this article.The second chapter the author analyzed and compared theory and practice of group action system in representative countries of two big legal systems more systematicly, thus put forward a model plan to the construction of group action system of our country. In this part, the author used the more systematic classified inspection method to the group action in various countries for the first time. For instance, class action is classified into two types carefully: one is taking American opt-out class action as representative and another is taking English opt-in class action as representative. Additionally the author also inspect test case which exist universally in various countries and other alternative group action system specially. Next, the author carded on a special deliberation to American settlement class action and test case. In recent years, only a few American class actions was tried to settle a lawsuit. It is similar to one American scholar had said, settlement rather than decision after the hearing has become the final outcome of many class actions. It can be said that, at present, settlement class action is the most prominent characteristic of American class action. This is also the reason why the topic introduced and deliberated settlement class action. The test case is a universal existing system in judicature practice of developed countries. Simultaneously it is also situated between the formal and alternative group action system. Method that is similar overseas test case has already been used to solve many group cases consciously or unconsciously in judicature practice of our country. But until now, theory and the practical realm in our country have paid no attention to overseas test case. So, this chapter analyzed and compared to the meaning of test case, test case in representative countries of two big legal systems as well as the value and function of test case.The third chapter has mainly carried on an analysis to three aspects: legislation background and the legal frame, the nature of representative action as well as appraisal to legislation of representative action in our country. Among them, key discussion was carried on to the legislation of representative lawsuit in our country. The academic circle mainly has two viewpoints about legislation of representative action. One kind believed that ours representative action system is a successful model which passes through China and the West. Another kind believed that the stipulation of ours representative action system is quite rough, which cannot adapt and cannot meet the realistic need completely. The author believed that both of these two viewpoints are prejudicial. Under the condition which the legislation preparation is insufficient, the legislator can profit from the overseas group action system boldly and unify the Chinese national condition to carry on the transformation and has established two kinds of representative action in the Civil Procedure Law. This has drawn Chinese Taiwan scholar's attention and has received high appraisal. We must say that it is worth commending very much. Under condition then, it is impractical to require representative action should be designed extremely consummately and applicably. But it is difficult to compelling to make very high appraisal to group action system of our country. In fact, the main questions of our country's representative action system are not merely these which the critic pointed out, but mainly other aspects. The author believed that the flaw of our country's representative action mainly displays in: First, the nature localization of the civil procedure law article 54 is wrong. Next, representative action stipulated in CPL article 55 is separated from the present stage of China actual national condition and lacks the flexibility. We can say this has is the primary cause which led to the representative action stipulated in CPL article 55 basically to be at the dormant state since the legislation. The fourth chapter mainly carried on a perspective and an analysis of judicial practice of group case in our country. In this chapter, the author firstly analyzed the reason and the characteristic which bring about our country's group dispute and the group case. Secondly, the author elaborated actual movement condition of the group action in various local courts of our country, as well as judicial policy which the Supreme Court and local court adjudicate group disputes on the basis of investigation and research. Thirdly, the author specifically analyzed the judicial effect of DaqingLianyi false statement group case. Finally, the author carried on a key evaluation to the judicial policy which has been used by the court in adjudicating representative action. The author believed that the judicial policy which is been used by court in adjudicating group dispute mainly has following problems: first, the court inappropriately exercises authorities in limiting consolidation and separation of group action when group action and joinder action are put on record. Second, the judicial policy which the Supreme Court snub representative action has had a series of negative effects. Different from the traditional litigation system, the representative action is to make up the insufficiency of the traditional litigation pattern and is to adapt to new demand for the right relief which social development causes. Through this kind of representative form, the group action enables multitudinous parties to merge highly and claim of each party can be concentrated. Its effect: On one hand, litigant's burden is been lightened when the expense is been shared out. On the other hand, reduce the gap between the individual plaintiff in the weak trend and the rich defendant and may prevent and punish defendant's illegal activity, cause the potential defendant to realize that he must pay in the economical and the reputation price for the illegal activity, then force strong side to observe the public policy, thus promote honest competition in commercial society's and enhance social credit. And this is the essential condition which market economy function effectively. But the judicial policy which the Supreme Court partition case enables these justice which should be possible to draw support from the team strength cannot be achieved. This greatly increased the difficulty of civil claim of victim and has indulged the inflicter.On the basis of research of the first four chapters, the author carried on the deliberation to reconstructing group action system in China in the fifth chapter. The author first proposed overall thought and the value orientation of group action system reform in our country. In view of the fact that the number of illegal harm that injures the benefit of multitudinous person is so many, the scope of the illegal harm is so broad and its nature is so bad at present. This situation affects sustainable development of China and the construction of harmonious society seriously. Therefore, we must establish a multiplication mechanism to solve group dispute to be able to protect legitimate civil right, sanction civil illegal activity and melt the group dispute effectively. According to the value orientation of the reform of group action system, the reform of group action system must relate with the reform of legal system in our country. We should enhance protection to legitimate rights and interests of weak group and the interest of public. We should promote the construction of harmonious society. At the same time, according to the principle of disposition right, we should respect certain procedure option of the litigant. So we can achieve the object that the judicature is truly for the people. Next, the author carried on a special deliberation to the construction of various kinds of group action system. This part includes three parts: the transformation of our country's representative action, the reference to American class action system and the construction of alternative group action system. The concrete thought of transforming our country's representative action system is: By the standard of whether lawsuit can be divided, our country's representative action will be divided into the essential representative action and the ordinary representative action. At the same time, the ordinary representative action will develop to two directions: opt-in class action and opt-out class action. In the part of reference to American class action, the author mainly proved the necessity and the feasibility that we profit from the American class action, as well as the construction of class action system, in the part of Constructing alternative group action system, the author mainly carried on the deliberation to the present movement situation of test case in our country and the standard, the standard of the system that multi-party appoint identical attorney to appear in court and the standard of consolidation of group case, etc.