| Economic law is the entity law to protect the public economic interests of society, publicinterest litigation system is the special procedural law to protect the public interest, and bothhave consistency in the systematic values. Litigation is the universal feature of legal norms.The three main components of economic law-market regulation law, economic supervisingand macroscopic regulating law, which should have litigation without exception, Because threetraditional litigating systems have non-economic attribution in right relieves and non-sciencein operations for the resolving of economic law disputes, the realization of economic lawshould seek a new litigating procedural law. As a result, the economic public interest litigationcame into being.Traditional litigation system plays an important role in the protection of personal interestsand national interests, but which has many difficulties in the protection of public interests. Afterlong-term research of scholars, although public interest litigation has obtained the selfautonomy of theory, but if we really want to play its systematic effect and solve the practicalproblems that public interests are normally ignored and not strongly protected by justice, wemust clearly understand that the reasons of infringements to public interests are many-sided,there are not only infringement act of citizens, legal persons and social organizations but alsothe abuses of power of administrative organizations. In this case, judicial protection of publicinterests should be adhere to the comprehensive hearing and dynamic concept of justice, thuswhich necessarily requires the breaks to the dividing methods of traditional litigation types.Therefore, I oppose to classify the public interest litigation into civil public interest litigationand administrative public interest litigation in the, but classify it into public interest litigation ineconomic，political and social areas according to its different areas in social life, among which,economic public interest litigation obviously belongs to economic areas and it is the type ofpublic interest that is needed to develop most urgently, which contains the contents of civil andadministrative public interest litigation advocated by the academic circle and also includes thetype of “pre-public interest litigation” such as securities fraud. In the construction of economicpublic interest litigation system, we should fully aware of the specialty of every stages fromlawsuit to hearing and implementation of public interest litigation cases as well as itsincompatibility to the traditional litigation approach, which is also the the reason why the economic public interest litigation has been put into practice but the implementation effect isnot ideal. Analysis and exploration on the dilemma And settlements of public interest litigationis the only way from theory to practice for the public interest litigation. The researchingpurpose of this article is to through the analysis of the dilemma and settlements of publicinterest litigation, thus forming the stimulating mechanism benefiting the implementation ofeconomic public interest litigation. This paper is composed of seven chapters.The first chapter mainly discusses the relationship between economic law and economicpublic interest litigation. First it discusses the background of economic law and the publicinterest position, then analyzes the development trend of the world of litigation system, thepurpose of litigation system is transformed from protecting the personal interest to maintain thepublic interests, the interests of plaintiff are changed from direct to indirect, as well as thehistorical necessity of the public interest litigation coming into being. Though the classificationof public interest litigation is not theoretically united, which should not classified by followingthe legal tradition of protection of private rights but research and practice according to thecontradictory states of all areas of social development. Economic interest litigation comes intoexistence just adapting to the outstanding contradictions and problems in the process ofeconomic developments, economic law and public interest litigation have not only theintegration in historical development but also consistence. Economic interest litigation is theimportant guarantee and realizing form of the actionability of economic law. The main types ofeconomic interest litigation have great difference in the justice of each country. The reason ofwhich is besides the differences of legal culture, mainly comes from the differences ofcontradictory form and urgency of different stages of economic development of each country.Hence current economic interest litigation should mainly include several typical forms such astaxpayers’ litigations, government purchasing public interest litigation, consumer’s interestprotection and the public interest litigation of product quality, environment protection, antitrustand unfair competition as well as securities fraud and so on.The second chapter elaborates the necessity and practical obstacles establishling publicinterest litigation system in our country. With the gradual deepening of development andreform and opening up, some deep contradictions have become increasingly exposed, thephenomenons that public economic interest are increasingly obvious such as consumptioninfringement, counterfeit and shoddy goods, tax abuse, loss of state assets, week of marketsupervision, and serious environmental pollution and so on. However, neither the administrative law enforcement,nor existing litigation system is able to provide adequate andeffective legal protection for economic public interest litigation. In addition, the goal ofbuilding a harmonious society and opening justice as well as the implementation of Judicialdemocratic policy also requires the court to break through the system and the mode of litigationnowadays.Therefore, building the economic public interest litigation system which reflects theparticipation of people is not only an urgent need for economic development but also the onlyway for the reform for the court itself. Inevitably, economic public interest litigation systemwill certainly meet the dual obstacles from concepts and systems when it is fully put intopractice. The severe lack of public interest ideas in society, the lack of the guidance ofsociological theory and dynamic judiciary concept of practitioners, the deep-rooted impact oftraditional litigation modes and so on, which form the conceptable obstacles for theimplementation of the economic public interest litigation.While the traditional labor divisionsystem of litigation, working mechanism inner the court and judicial supervision systemconstitutes the direct system obstacles for the implementation of public interest litigationsystem. Meanwhile, the serious shortage of judicial authority, the functional defects ofintermediary organizations are also the major obstacles which has to be considered andovercome by the economic public interest litigation system while its implementation.The third chapter analyzes the theory and practice of economic public interest litigation inTaiwan and abroad. In ancient Rome, there is difference between public interest litigation andprivate interests’ litigation. The essence of public interest litigation is that plaintiff protects thepublic interests in the name of individual, of course including economic public interestlitigation this paper refers to. Group litigation of America, especially securities fraud grouplitigation just reflects the essential features of the economic public interest litigation. Besides,there are environmental public interest litigation, antitrust public interest litigation, informerlitigation, taxpayers’ litigation and so on in the United States. There are also various forms ofeconomic interest litigations in other countries, such as Britain, Germany, France, Japan, India,and China’s Taiwan,which is worth of our reference. Especially in India, the Judicialphilosophy of letters and initiative judicial philosophy in the aspects of public interestprotection from the court is particularly worth us to learn.The fourth chapter mainly introduces the several typical forms of economic public interestlitigation that have been or urgently needed to be developed at present stages of our country,they are taxpayers’ litigation, government purchasing public interest litigation, consumer’s interest protection and product’s quality public interest litigation, securities fraud public interestlitigation, environmental protection public interest litigation, antitrust and unfair competitionpublic interest litigation as well as macro-control public interest litigation. This section ismainly based on case studies and combines the practical experiences at home and abroad,intuitively explained the necessity, legitimacy and feasibility of the development of these typesof public interest litigation in China, on one hand, which confirms the representation of thedevelopment of litigation purposes and litigation interest theory among economic publicinterest litigation, on the other hand, which proposes some particular recommendations andrequirements for perfecting the related public interest litigation with combing the problems ofexisting and cruxes.Chapter V discusses prosecution incentive measures in the implementation of economicpublic interest litigation system. Prosecution is the basic stage of litigation procedures. It is thehotspot and focus that has been always concerned by the academic circles to encourageprosecution principal promoting the implementation of public interest litigation. Economicpublic interest litigation should practise comprehensive prosecution incentive mechanism,including the types of prosecution principal and clarity of sequence, the range of filing and theopeness of standard, materially incentive mechanism, court-directed system and so on.Amongwhich materially incentive mechanism ist the most concerned incentive way. The prosecutionprincipal system that based on intermediary organizations and aided by individual andprocuratorial organs should be established to let public interest litigation become the importantbusiness and the sources of income of intermediary organizations, thus forming benigninteraction between the implementation of economic public interest litigation and growth ofintermediary organizations. The sources of incentive funds should mainly rely on thecommission of winning a lawsuit and raise funds by publishing law lottery to provide plentylaw guarantee for incentive funds. In addition, the prosecution way of economic public interestcases should be looser than traditional litigation modes. Letters administrative system in Indiacan be adopted to enhance the initiative of public interest cases accepted by the court. Thecosts of litigation should be extensively reducted, exempted and postponed to effectively solvethe problem that cases are difficult to go into the court.Chapter VI mainly assumes on the reform of the trial system of economic public interest cases. The trial system here refers to the sum of institutional factors which affects the juridicalresults of cases within the court, which includes the jurisdiction of first instance, trial mannerand mode and elite judges. Economic public interest litigation should establish the first instancejuridical system which is based on the High Court and aided by intermediate Court, by this waythe qualities of cases are assured and thus corresponding judicial credibility is formed, which isalso the foundation that the incentive mechanism of economic interest litigation is formed. Inthe allocation of the responsibility of proof, we should not only fully consider the proof-givingability of the litigant, implementing corresponding proof-giving responsibility systemaccording to different types of economic public interest cases but also make full use ofinitiative of justice to overcome the inadequacy of proof-giving system in order to protectsocial public interest maximally. In addition, economic public interest court should beestablished, professional and integrated judicial system should be implemented and publicinterest disputes should be soluted one time. Economic Public Court should select the personsfrom excellent judges with rich experiences and guarantee that they have adequateoccupational superiority and career successful sense.Chapter VII mainly discusses the strength of the measures of economic public interestlitigation implemented by the sentence. Effective execution of sentence is the final factor toachieve the goal of economic public interest litigation. In order to effectively overcome theproblems which are difficult to be executed and commonly existed in our country and reallymake economic public interest litigation system become the effective means of protectingpublic interests, every aspect of executing work should be well done to ensure the outcome ofthe case is fully and correctly implemented. The application executing system of traditionallitigation should be abandoned and the mechanism that effective sentence of economic publicinterest litigation cases execution mechanism automatically transferred to the executingprocedure should be established. The participation of governmental departments andcommunity can be absorbed during the enforcement and the power and transparency ofexecution should be enlarged. The new executing measures such as reputation and qualificationpenalty can be fully used and the deterrence of judicial sentence are fully represented, theobligations of executors that are decided by the effective sentence should be supervised to befulfilled within a time limited. On the basis of assurance that cases have been fully implemented, the system that reserving the executing money according to its winning share andrate to ensure the expected income of executors who have wined the lawsuit should beimplemented and promote the good development of economic public interest litigation system. |
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