On The System Of Representative Action

China today is in a period of rapid economic development, but also the social structure of a major period of transition. The interests of the original pattern is broken, not yet formed a new pattern of interests, the interests of creating a diverse variety of social conflict. In recent years, from corporate restructuring to demolition, from consumer rights to environmental litigation, securities fraud to the industry from monopoly, lateral economic ties continue to strengthen, by the same or similar offense involving damage incidents caused by the interests of many groups of stakeholders show all disputes with its multiple and urgent. "People evaluate the level of a society or social order and the rule of law situation, the fundamental basis of social conflict in society is not the frequency of occurrence and intensity, but the reality is that litigation for the ability to resolve social conflicts and effects." However, many of the main group disputes limited space and the contradiction between the action, the traditional litigation system can not effectively resolve a single, common litigation system also appeared to be inadequate.Looking also experienced rapid economic development of the western countries, in order to effectively deal with large-scale group disputes occur, both have built up a dedicated group of legal proceedings to achieve a one-time settlement of disputes. The basic legal principle is: large number of disputes based on law or fact between the implicated in the relationship the same status in the litigation will be a party to a large number of fiction with a legal personality as a "group" through "litigation on behalf of mechanism" and "effect of the expansion decision" to solve the traditional litigation system in the limited space can not accommodate too many lawsuits challenge the subject of proceedings, one-time solution to a number of parties with the other conflicts of interest between the parties, make up the traditional single class action litigation and unable to timely, effectively address the shortage of new group disputes.China's legislature in the last century through the early 90s is also the form of legislation, in the "Civil Law " enacted a special representative to deal with large-scale litigation group disputes. After nearly 20 years of trial practice, this was supposed to be charged with the enormous economic and social benefits of the system, but due to various institutional and environmental factors are difficult to apply, suffering from all walks of life question. In order to explore the source of the problem, this paper through theoretical analysis and empirical research methods combined cases, in addition to the introduction, epilogue, is divided into three parts discussed in this system:The first part introduces the concept of representative action system features, content framework, and our system of representative litigation system and a comparative study of joint action, and further highlights the representative action litigation involving the subject of proceedings with the large between the parties Common interests, rights and judgments to achieve indirect effect of the expansion of uniqueness. Through the United States and Japan, the selected class action litigation of the parties to clarify on behalf of the relationship between litigation and, help to understand the system of representative litigation "on behalf of mechanism " and "the effectiveness of the expansion decision, " there Defects. As a result, come out of the current litigation on behalf of advantages and disadvantages of the various theoretical controversy.The second part, as the focus of this article, the author describes the way empirical research of a grassroots people's court of group litigation, including litigation and several other representatives for Dispute Resolution. Hosted the groups with the judges of court cases and found that based on subject matter of litigation, the case complexity, representative selection of difficulty, performance and other factors to consider mechanisms, groups of judges select the applicable dispute resolution proceedings are different, and then summed up China representative of the grassroots people's court appeal in the operation of the status quo: "Civil Law" established in Article 54 to determine the number of representative action is necessary in some joint action can still be seen in the first 55 established representative action in the number of uncertain joint action in general is almost hard to find. Next, the author analyzes the various reasons causing this situation. Specifically, the representative action value function Deviation (one-sided pursuit of litigation to the neglect of efficiency of protection of public interest), construction of system is imperfect (theoretical design is simple, rough legislation, lack of incentive mechanism, the high running costs), Transformation groups disputes complex (not only "small majority of type" group disputes, as well as "significant right type" group disputes involving policy changes and how much), the Supreme Court's judicial policy to avoid negative for conservative representative action, the court performance mechanism constraints of legal counsel the judge for the enthusiasm, over-developed mechanism for litigation group disputes led to many flock to party committees and governments. The third part of the problem thinking measures proposed System of representative litigation path. The author argues that, in the positioning of representative action value function, we should clearly reflect the representative action for action just (balance the strength of the parties, the right to protect the weak against the offense), litigation of economic, social benefits (protection of public interests, maintain social stability) of the pursuit; in the specific measures should be taken under the disputes on the type of targeted approach, to establish a diversified group of dispute resolution mechanisms: improved handling of legal counsel system "significant rights-based" group disputes, drawing out style class action treatment, "a large number of small-type" group disputes, set the group action in specific areas, intervention by administrative measures "policy type" group disputes.