The Applicability And Limit Of The Civil Representative's Lawsuit System In The Administrative Class Action Of China

The 97th article of "Several Explanations on Administrative Litigation Law" says, "in the administrative litigation, except applying the Administrative Litigation Law and this explanation, the people's court can also make reference to the relevant articles of civil action." This reference clause makes the representative system in civil action directly applicable to administrative cases. However, all articles of the civil representative system can not be applied to the administrative class actions; articles of the civil representative system which can be applied to the administrative class actions should not conflict with the inherent character and basic principles of administrative litigation. And the referred civil rules can only apply to procedural proceedings.The scholars of our country have not paid much attention to this question. However, Taiwan Administrative Litigation Law has provided a comparatively complete legislative mode for us. Giving up the legislative technology of prescribing abstractly to quote civil procedure law directly adopted by the old law, new Administrative Procedure Law stipulates the concrete application clause of civil procedure clearly in each chapter or clause.Basing on the comparative analysis on civil action representative system, litigation subject clause of administrative class action, party system, the selection system of representative and expansion of adjudged force, we can get the similarities and differences between them and get the opinion about how to apply Representative Lawsuit System's clause into Administrative Class Action. Meanwhile, learning from legislative mode and the relating theories of between the clauses of administrative class action and the clauses of civil selected representative system of Taiwan, except defining the application scope in administrative class action of the concrete clauses of civil action representative system, we can also have a deeper understanding of the application and limit of civil action representative's system in administrative class action system.Particular clauses of subject of litigation, clauses of party's relations and the form of representative's qualifications and authorities of the civil representative system can be applied in the administrative class action, but the clauses of qualifications of party, types of representative, lawsuit rights of representative and the system of the expansion of adjudged force shall be excluded.