On The Plight In The Actualization Of Representative Litigation And The Corresponding Countermeasures

In China, representative litigation system comes into being under the circumstances of the arising of group dispute, the awakening of group interests and the necessity of improving and perfecting dispute resolving mechanism. Because group dispute has some special characteristics, representative litigation system, as a modern litigation mode, demonstrates the features such as great quantities, fictiveness of victim group, representative's participation into the proceedings and expansion of the referee. Like the logical starting point of civil litigation, the representative litigation starts and ends with the purpose of resolving the dispute. Differing from the fact that the civil proceedings value justice and efficiency meanwhile giving priority to justice (in particular, procedural justice), the representative litigation stresses efficiency, while at the same time considering justice.However, the application of the representative litigation encounters many problems in the judicial practice, which does not correspond to the original intention of its legislation. Firstly, the judicial application rate is quite low in the court because of the court's judicial incapability, its passive judicial policies as well as its internal assessment mechanism which breeds judge's inaction in the representative proceedings. Secondly, litigants involved are not active too, because the cost-benefit ratio is too high for the litigants involved in the group dispute to resort to the representative litigation, meanwhile, the tradition of turning to the group strength, power and relationships for help restrains the representative litigation. Thirdly, there are many irreconcilable conflicts between the representative and those who are represnted, which is mainly due to the contradictions between the representatives and those who are represented, the benefits of the representatives and the group being represented, the litigants involved and the registered after the proceedings.Considering the present plight in the judicial practice, the author of the paper, by adopting some analytical methods of economics such as cost-benefit analysis, game analysis and so on, presents the following strategies to solve the problems: firstly, considering the limited judicial resources in China, we should promote the effectiveness of the representative litigation and improve the external environment for the application of the representative litigation, thus cultivating the soil for its survival. Besides, the relevant legal systems should be improved and the representative litigation should be related to the relevant regulations, which can help to establish a diversified dispute resolving mechanism considering diversified interests. The author of the present paper suggests that, first of all, we need to take advantage of the leading position of the economic profits to improve the actual operating mechanism of the representative litigation; secondly, the game theory should be introduced to adjust the operational strategy of the representative litigation; lastly, we should pay great attention to representative litigation's corresponding to the relevant laws and regulations, building a diversified dispute resolving mechanisms for the group dispute.