Research On Methods And Paths Of Consumer Collective Redress

Consumer collective redress is to settle the mass consumer torts in modern society.It is to regulate the behavior of operators and protect the interest of a multitude of consumers.However,China's consumer collective system has many problems in legislation and judiciary,and its effectiveness and efficiency are pretty limited.The consumer collective redress system of other countries and regions is also controversial on some key issues concerned.This dissertation argue that,in addition to the background of the legal system,these issues and disputes arise from the lack of a clear definition of the rights protected by consumer collective redress.The basic viewpoint of this thesis is that consumer collective redress protects the collective rights of consumers.Consumer collective rights include the personal interests of members in the collective and the holistic collective interests.Consumer collective rights could be divided into necessary collective rights and homogeneous collective rights.The justification for consumer collective redress is to realize the common interests of consumers and implement the policies stipulated by substantive law.Based on that,this thesis proposes a systematic improvement plan for China's consumer collective redress.This research adopts the research approach of posing questions-analyzing problems – solving problems,and takes the structural arrangement from abstract to concrete,from theory to institution.In addition to the introduction and conclusion,the main contents of the remaining chapters and the issues to be demonstrated are as follows:Chapter 1 raises the issue.It mainly introduces the status quo of consumer collective redress and its existing problems.Firstly,discusses the causes and necessity of consumer collective redress.It was created to address the massive infringement related to consumers.Then gives a preliminary definition of consumer collective relief,and then clarifies its characteristics,introduces its purposes,functions,values and the principles that should be upheld.Finally,it reviews the history of the generation and development of consumer collective redress in China.Then summarizes the legislative status of China's consumer public interest litigation and conducts statistical and empirical analysis of judicial cases,which have been accumulated for six years since it was stipulated.Based on these researches,it is found that there are problems in China's consumer collective redress: the theoretical basis of substantive law has not been constructed and the substantive right as the basis of collective redress is missing,which leads to some application problems,including the type of claims could not meet the needs of purposes and functions of consumer collective redress.In addition,China's consumer collective redress has only one single effective mechanism is also a problem.Chapter 2 is the core chapter of this paper,which constructs the civil law foundation of consumer collective redress.Firstly,it analyzes the three stages of consumer collective redress along with the evolution of era and its causes.The jurisprudence basis of consumer collective redress is discussed,including basic ideas and justification foundations.Next,it analyzes the impact of consumer collective redress on traditional civil law and the response of civil law.To be specific,this part includes impacts on the basic principles of civil law,the theory of civil subjects,the civil rights system,the civil liability system and the civil procedural rules,and their responses.Through the above analysis,this thesis tries to find the regulation rules and trends of consumer collective redress,and further clarify the ideas and the value orientation of designing the rules of consumer collective redress and solving its problems.What's more,it analyzes the Anspruchsgrundlage(the basis of claims)of consumer collective redress.It starts with summarizing the types of claims of consumer collective redress.Then,it points out that the Anspruchsgrundlage theory of civil law has inherent limitations,which leads to the discovery barrier of Anspruchsgrundlage of consumer collective redress.Finally,through social review of the mindset of civil rights,it reveals that the current types and systems of civil rights ignore the actual needs of society,hinder the expansion and socialization of civil law,and directly limit the function of consumer collective redress.It is necessary to recognize the new and social interests that require the protection of civil law as rights.Break the constraints of conceptual jurisprudence and expand the types of rights that civil law should protect.Take the new type of right as Anspruchsgrundlage of consumer collective redress.The discussion of the Anspruchsgrundlage of consumer collective redress connects with the foregoing and carries forward to the next chapter.Chapter 3 is also a vital part of this thesis,which focuses on the rights that consumer collective redress is based on——the collective rights of consumers.Drawing on the research of collective rights in political liberalism theory,this chapter defines consumer collective rights as: In circumstances that massive consumers are infringed or may be infringed by the same improper business conduct of an operator,in order to redress the victim consumer collective and its members,the law empowers the collective certain rights that pursue collective benefits that help the entire consumer collective establish,maintain and develop,and that allow individual consumers who are members of the collective to benefit from it.The rights need to be actually exercised by representative entities that are authorized by law through establishing and making use of some consumer protection agencies or institutions.Then,by analyzing the relationship between consumer collective rights and related rights and interests,this part further precisely locate consumer collective rights and their legitimacy.First,the relationship between consumer collective rights and individual rights is elaborated.Consumer collectives are private law subjects.The legal relationship expressed by consumer collective rights is subject to the adjustment of private law.Consumer collective rights are the extension and revision of individual rights,with the aim of prompting the realization of individual rights.Beyond the group,the individual rights of consumers and their collective rights are independent of each other.Within the group,consumers' individual rights are member's rights.At this level,the boundaries between consumer collective rights and individual rights should be accurately divided.Second,analyze the relationship between consumer collective rights and public interest.Although consumer collective rights objectively have the function of protecting public interest,they should not accept the value concept of social standard,and should be “de-public-interest” in nature.Finally,classifies consumer collective rights into necessary collective rights and homogeneous aggregative rights.The analysis of this part about the content and classification of consumer collective rights is basis of the posterior part of this thesis,which eliminate barriers for China's consumer collective redress,constructs the system of it and solves the problem of claims.Chapter 4 is based on the analysis of consumer collective rights in the previous chapter,and specializes in the study of claims of consumer collective redress.First,determine the uniform standard for claims to be dealt with in consumer collective redress procedure.The criteria of claim interdependence and remedial indivisibility could be used to determine whether a claim should be processed in consumer collective redress.Homogeneous collective claims should also be included in the types of claims of it.Then explore the adjustment plan for specific types of claims.China should broaden the application scope of declaratory judgment of consumer collective redress.As to the damage claims,it should be allowed in consumer collective redress,which should be classified by the nature of interests that the damage claims generate from,instead of the amount of them.Allow the initiators of consumer collective redress to bring claims for public interest damages and private damages.As to private damages,property damage claims should be processed without the express mandate of aggrieved consumers.However,the personal injury claims should be dealt with under the express mandate of aggrieved consumers.If necessary,collective punitive damages could be applied but should be done in a prudent way.As regards the relationship between the declaratory and damage claims,China could adopt and restrict the “two step” approach.Chapter 5 continues to solve the problem,eliminating the specific obstacles to the exercise of consumer collective rights and proposing a system improvement plan for the redress of it.It clears out the specific obstacles for the exercise of consumer collective rights in substantive law.At the beginning of it,the issue of the subject qualification of exercising consumer collective rights is discussed.It suggests that the qualification and order of subjects exercising consumer collective rights should be arranged on the basis of the auxiliary principle.In terms of application requirements,consumer collective redress should “de-public-interest”.Regarding the organization of consumer collective,it encounters some obstacles.The opt-out mechanism could be allowed in the procedure initiated by non-private entities.However,some restrictions and exceptions should be set.Except that,consumer collective redress could accept risk premium as a driving force of organizing the group.In response to these questions,this chapter studies plenty of extra-territorial regulations of consumer collective relief.Finally,a systematic improvement plan for consumer collective redress is proposed.On the basis of foregoing research,the consumer collective redress is redefined.Following that,clarify the considerations for the design of the systematic advanced program of consumer collective redress,summarizing the degign ideas if it and sort out its development trends.What's more,it suggests a consumer collective redress system,which contains the opt-out public interest litigation,the opt-in “representative litigation”,the two-stage collective procedure for damage claims based on the former procedure of consumer collective redress,and the collective ADR for consumers.