On System Of Test Case

Test case is from German practice. The literature of test case is first from 1960, which originated from large-scale and diffuse group dispute, and social conflict. How to solve group dispute is always difficult problem in front of every country, which urging some countries to try to search the best way to resolve group dispute. But how to remedy the defect of the current group suit, how to resolve group dispute effectively, fairly and compatibly, how to correct, punish and prevent group dispute, how to relieve the rights of weak group, and how to show the function and the value of test case, which cause the high concern of the legislature and academia.With these problems in mind, the author begins with the conception, feature, boundary of test case, combs the history of test case, and studies the basic theories of test case, including the legal relation, the expansion of effect, the contract theory or the modal theory. Meanwhile, the author compares the sample of the test case between the two different law systems, which is beneficial for our country. After that, the author goes on to observe the value of test case, including the system’s rational, advantage, disadvantage and how to stretch the value. Based on the aforesaid analysis, the author demonstrates the necessity and feasibility of recommending the test case, and explores "quasi-test case" in our practice. At last, after determining various sorts of relations among the system of test case and other systems, the author brings forth concrete programs on how to structure the system of test case in our country.This paper includes 7 chapters, except the preface and the conclusion. The contents of each chapter are as follows.CHAPTERⅠ. General overview of test case. This chapter introduces the conception, feature, classification of test case, and distinguishes the differences between the test case and other systems, and gives a briefly historical review of test case so as to make good preparation for the next research. Based on the research achievements of scholars home and abroad, the author holds the opinion that, in broad sense, test case is applicable to the settlement of group dispute, detachable debt dispute, three formidable disputes, and so on. Namely, test cases can be divided into three classes, i.e., one request pattern, prerequisite relation pattern, and same kind pattern. But where the test case can play the most important role is in group dispute domain. So the author defines "test case" in the context of group dispute, which should be regarded as the same kind pattern. In brief, test case is agreed on by the parties or designated by the judge, which is picked out from some pending majority suits, and the lawsuit consequence is the sample of solving other cases. Meanwhile, the author summaries the feature of test case, including the "intercommunity" of group suits, the choice of starting procedure, the experiment of a case trial, the expansion of judgment effect. Meanwhile, it must classify test case and other systems. As modal, test case is different from class action, verbandsklage, party-chosen action, and representative action. As experiment, test case is different from public interest litigation, case-guiding system, prejudication -guiding system, and separate trial. In addition, the author combs the history of test case. Based on that, we can totally and clearly recognize the test case system.CHAPTERⅡ. Basic theory of test cases. This chapter aims to demonstrate the whole basic theory, including the major law relation, the expansion grounds of judgment effect, the contract theory of test case, the modal theory of test case, which is the foundation and support for the following research. First, it is important to research the law relation of test case. Test case is the combination of public relief and private relief. What regularities are there in operating test case? How should the court and the non-test-case parties other than the parties of the test case carry out their actions with respect to the test case? All these require clear definition of the legal relations of test case. Second, to endow the test case judgment having expansion effect, it is essential to secure the procedural rights of the non-test. parties, including opening the door to suit or appeal for third person, and including the court informs the effect of the test case judgment and protects the procedural rights of the third person. Third, the modal theory of test case contains the contractual modal of test case, the authoritative modal of test case, and the mixed modal of test case. Of which, the mixed modal has the advantages of both the contractual modal and the authoritative modal. But the mixed modal also has those deficiencies. So this modal is needed to be amended and improved. Fourth, it is necessary to explain the contractual theory. Be it the test case defined by the author, the contractual model, or the mixed model, all contain the spirit and essence of the contractual theory of test case. So it is essential to analyze and research the contractual theory of test case.CHAPTERⅢ.Comparison of the sample of test case. This chapter observes and compares the sample of test case between the Anglo-American law system nations and the Continental legal system nations, especially introduces the sample of test case in Germany, which aims to absorb the essence and discard the dross. There are some differences in these countries’ legislative foundation, just source, applicable domain, the modal of test case, the starting with procedure, the expansion of judgment effect, the rights of no-party in test case, and so on. Among these samples, German sample is the most comprehensive and advantageous, which remedies the Verbandsklage and becomes an important method of group dispute settlement. The advantage of German sample is that, the judgment of "intercommunity" can directly apply to other joiners, and the test case party and non-test-party in test case can share the profit of the judgment, which attracts the claimants of group disputes. And the German sample also cancels the fees about appraisal and appeal, and lowers the threshold of litigation, which is beneficial to the minor victims in diffuse disputes. So that is the charm of test case.CHAPTERⅣ. Consideration of the value of test case. This chapter illuminates the rational system of test case, and evaluates objectively the advantage and disadvantage of test case, and analyzes deeply how to stretch the value. Concretely, firstly, the rational of test case is that it is not only the aim of civil procedure, but also is the high form of modern action and the new route of solving group disputes. Secondly, the advantage of test case is that it can unify the sentences and avoid the contradictory sentences. It can arise to exemplary effect with the aid of the expansion of sentence effect. It can correct mistakes and have a introspection after a case trial. It can facilitate reconciliation, on the ground of forecasting the law. It can realize fair and benefit, embodying the economic litigation and just division. It can absorb in essence and complement the traditional litigation. Meanwhile, the disadvantage of test case is must be faced, which is that it weakens the power of collective, and it is hardly to make a contract, and if a case trial delayed, the efficiency will be influenced. Another, it has the procedural short of enforcement and preservation. All those disadvantages must be corrected and improved. Thirdly, the value of test case can be expansion, including excavating public value, increasing the function of prevention and relief, and advocating the judicature initiative. Contemporaneously, test case has big space in influencing and transforming the public policy.CHAPTERⅣ. Consideration of the value of test case. This chapter illuminates the rational system of test case, and evaluates objectively the advantage and disadvantage of test case, and analyzes deeply how to stretch the value. Concretely, firstly, the rational of test case is that it is not only the aim of civil procedure, but also is the high form of modern action and the new route of solving group disputes. Secondly, the advantage of test case is that it can unify the judgments and avoid the contradictory judgments. It can arise to exemplary effect with the aid of the expansion of judgment effect. It can correct mistakes and has an introspection after a case trial. It can facilitate reconciliation, on the ground of forecasting the law. It can realize fairness and benefits, embodying the economic litigation and just division. It can absorb in essence and complement the traditional litigation. Meanwhile, the disadvantage of test case must be considered:it weakens the power of collective; it is hard to make a contract; and if a case trial is delayed, the efficiency will be influenced; and it has procedural shortcomings in enforcement and preservation. In addition, it has a conflict with the traditional theory. All those disadvantages must be corrected and improved. Thirdly, the functional value of test case can be expanded, including excavating public value, increasing the function of prevention and relief, and advocating the judicature initiative. Contemporaneously, test case has big space in influencing and transforming the public policy.CHAPTERⅤ. The necessity and feasibility of introducing the test case. First, this chapter analyzes the motivation of introducing the system of test case. It is believed that test case is sharp weapon for the settlement of group dispute, good medicine for the remedy of the representative action, and a necessity of harmony, economy, and pluralism. So the conclusion is that it is very important to introduce the system of test case. Second, the author inspects that the feasibility of test case, and explores the operation of "quasi-test case" in China. Then, the author concludes that test case has a base in practice, and has feasibility in technology, and has affinity in law inherit, and has adaptability to native culture. Especially in practice, the author puts through analyzing the typical case, and introducing the institutionalize practice, and inspecting a demonstration of two tendency in practice, which make this chapter more empirical.CHAPTERⅥ. The framework of test case in China (1). This chapter has orientation about test case, before establishing the system of test case. So this chapter mainly studies the orientation between test case and representative action, test case and other group actions. And how to choose the modal and sample of test case, how to join in test case and case-guiding system, and what is the test case applicable. All those can develop guiding effect, which are preparing for constructing the system of test case. Concretely, firstly, how to orientate the test case and representative action? Replacement or coexistence? Should the test case develop gradually or permanently? Secondly, is there any contradiction among test case, class action, verbandsklage, party-chosen action? Thirdly, what modal and sample can be chosen? How to join in test case and case-guiding system? And to what is the test case applicable? Then, the author gives some answers.CHAPTERⅦ. The framework of test case in China (2). This chapter constructs the procedure of test case, including the applicable condition, the starting condition, the test case to chosen, the government of test case, the announcement and registration, the fees of test case, the expansion of judgment effect, the protection of the third people, and some special questions in test trail, including the reconciliation and mediation, lawsuit limitation, appealing and so on. This chapter also includes improving the internal systems of court, establishing the obligatory agent, adopting the system of gaining the payment when winning a lawsuit, and making some experiments for test case trial. At last, this chapter also shows the procedure of test case so as to make the stages of the operation of test case procedure more lucid and more expedient for the judicature.