Study On The System Of Organization Litigation

In the modern society, while the economy experience a fast development, the intercourse between people becomes more and more frequent. The influence of action enlarges day by day. The dispute in social life has exceeds the limitation of single main body or a certain region. It acquires new features instead. The solution for group disputes has become an important precondition to secure the stable development of society. Civil procedure system, herewith its justice, authority and finality, has played an implacable role to resolve social conflicts and safeguard social community order in modern countries ruled by law. Comparingto the basic object which is adjusted by traditional civil procedure——conflict betweenindividuals, new cases like massive environment pollution, protection of consumer rights etc have asked for a high demand for litigation system. On one hand, the cognizance of such cases should also obey the rule of equality and justice of civil procedure, and to provide both parties with procedural guarantee; On the other hand, the civil procedure system for group disputes has to be speedy and economic. It should balance the procedure guarantee for party and the once-resolution of the dispute. Current traditional civil litigation cannot solve the problems for group disputes. It is now a puzzle for the process of rule of law in China to improve civil litigation system to solve disputes, safeguard proper rights and realize the purpose of legal adjustment.In early 1990s, China set up the lawsuit of representative based on other countries experiences, which earns high evaluation from many scholars. However, as China is still in a transition period of social state, there are various contents, forms and types of group disputes. The lawsuit of representative cannot apply to all kinds of group disputes. Furthermore, this system has not been demonstrated fully before its legislation, so it is not widely used in the practice of judicatory. When dealing with group disputes, most court adopts two ways: either independent registration and united hearing, or independent registration and separate hearing. Although there are many reasons for this situation, no doubt the inner defects of this system are major factors. Group disputes involve a group of people and the social influence is significant. The quantity of this kind of disputes increases greatly. All these facts indicate China need to improve its system of judicial relief of group disputes, which takes the lawsuit of representative as its core content. This is the necessity of realizing Chinese law target and has significant meanings.Group disputes are solved with different litigations in different countries of the world. Different values and functions are pursued. This thesis is about the organization litigation based on administration and control of association and organization to the society and widely used in many countries of the world. The thesis introduces and analyzes organization litigation from perspectives of legislation and practice, proposes that China should improve system of judicial relief of group disputes while insisting on various solutions.This thesis is written in four parts:Part One The organization litigation system of Germany and Taiwan Region of China . As the organization litigation systems of Germany and Taiwan Region of China are typical, this part introduces the organization litigation systems of these two regions as a start. Firstly, it presents the development route of the organization litigation system in Germany through the expatiation of historic and current legislation content in Germany about litigations that is lodged by organization asking for omission and actions for damage, then introduces the practice situation of this system in Germany, including the incentive mechanism adopted to promote this system and the controlling system adopted to avoid misuse. Secondly, legislation development and practice of organization litigation system in Taiwan Region of China is introduced in the same manner. It emphasizes the regulation of civil action towards organization litigation system, and the development of actions for damage in this region.Part Two The review of organization litigation system.Based on the summary of previous contents, this part objectively analyzes the content of organization litigation system and its advantages and defects from aspects of system features, its basic theory and comparison with other systems and principals. Firstly, the features of organization litigation system are concluded as below: the accuser is those non-profit organizations that have the ability to safeguard their own rights and meet all requirements in the law, while the basis for their qualification is either regulated in the law or authorized by organization members, taking the defend protection as main function. Meanwhile, the litigant applying area is limited or the nature of the litigation is for commonweal etc. Secondly, the qualification for the proper party in organization litigation system is discussed in focus. In organization litigation, the organization is not actually the parties of substantive rights in question. Apparently, if the theory of traditional qualification for the proper party is obeyed, the organization will lose its theoretical support to be subject of litigation. This thesis takes litigation trust and taking—on of litigation as the foundation of organization qualification of proper parties, because these two theories are relatively reasonable and are widely accepted by most scholars. Based on the intensive analysis of the two theories, the thesis concludes that organization is qualified as subject of litigation by regulation of the law and authorization of obligee. Meanwhile, it also points out that the concept of organization litigation is administrated and controlled in modern society by organizations such as guild, consumer organization, and environment protection organization etc. The fast development of organization litigation system in Germany and Taiwan has a close connection with the development of these organizations in the two places. And then, the comparison is made among organization litigation system, class action in USA, selective parties action in Japan, and principle of supporting accusation in civil procedure of China to find out the common points and differences of these systems and principals. At last, to penetrate into and fully understand the organization litigation system, and to avoid the neglect of disadvantages of learning form other countries' experiences when its advantages are overly emphasized, this thesis also fingers out the system advantage that organization litigation system shows when protecting rights and effectively preventing abuse of litigation, and remaining questions that organization litigation system has a limited applying area and the lack of incentive mechanism etc.Part Three The necessity and condition of using organization litigation system in China.In this part, the necessity and feasibility of using organization litigation system in China is dissertated. It is the extension of above mentioned points and the preparation of following ideas. It includes two parts: the necessity of using organization litigation system and the feasibility of using organization litigation. In terms of necessity, it resolves two defects of the system of judicial relief on group disputes in China which mainly focus on the lawsuit of representative: incomplete protection of proper rights and morbidity of legislation, and then points out that organization litigation system is a helpful and necessary complement of the system of judicial relief on group disputes in China. In terms of conditions, all actions, such as the vigorous development of non-profit organization, the arising public interest lawyer, the legislation and practice of copyright collective management system, demonstrate that using organization litigation system accords with the practical situation and actual need in China.Part Four Discussion of other issues for using organization litigation system in China.Following the analysis of organization litigation system in previous texts, and the dissertation of social need and condition, the thesis hereby claims multi solution for disputes should be considered as a standpoint, learning merits and avoiding demerits of organization litigation system to improve the system of judicial relief on group disputes, building a complete system of judicial relief, combining and coordinating multiple systems such as the lawsuit of representative and organization litigation, and states the author's own opinion regarding to specific issues in drawing lessons from organization litigation system. For the applicable area, it should expand to wider range, not just for organization like consumer protection, environment protection, securities investor protection and intellectual property protection etc that has high requirements on protection for group interests and enjoys a comparatively complete organization development. For specific practice, the plaintiff qualification of organization litigation should be strict, the consulting procedure before litigation should be emphasized, the area for judgment effect should be clear and the incentive mechanism of litigation should be set. Then the function of organization litigation system can be maximized in China to meet the needs of solving group disputes, protecting group interests and safeguarding social public order.