The Study Of Our Country’s Securities Group Litigation System

Group litigation is the product of western country when entering into postmodern phase, which is mainly the product of contradiction between the most small scattered interest disputes and judicial function limit resulting from the processing of mass commodity production and sales and service. Its system design is beyond the one-on-one traditional litigation structure from the basic structure, design target, and function. Securities group litigation is specific application in settling group disputes in the field of securities markets. At present, each country has its special form for securities group litigation. In general, worldwide representative group lawsuit system includes:Japanese system of selected party; German system of team legal action; American securities class action and Chinese litigation representative system regulated by "civil procedure law of the People’s Republic of China".This article is divided into four parts; the basic content is as follows:The first chapter is an overview of group litigation of our country securities market, mainly introducing the status quo and infringement of the securities market and in legislation and judicial situation of securities civil litigation. Firstly, the author will define the concept of group litigation and securities group litigation and get a conclusion in worldwide representative securities group lawsuit system based on it. At the same time based on the investigation and analysis of relevant legislation and judicial practice in our country, points out the problems and deficiencies existing in our country securities group action on the legislation and judicial practice at present.The second chapter is investigation and analysis of representative lawsuit system for outside securities group. It mainly introduces the concept and constitutive requirements of Japanese system of selected party, German system of team legal action and American system of securities class action.The third chapter focuses on the following two issues.One is about the securities group litigation system from Chinese scholars’ perspectives. After introducing scholars’views, on the basis of studying foreign laws in Chapter Two, the author analyses their views. In conclusion, there are some fundamental flaws in the representative litigation of our country from the above scholars. Meanwhile, in the case of legislative shortcomings and deficiencies of the judicial practice, we should actively learn and introduce the system, which has the values and functions of group litigation. Additionally, this system must comply with China’s present condition and practical needs. Therefore, the reform direction of China’s securities group litigation should be set to suit the function of it and it should be oriented towards its value to establish corresponding regulation mechanism complaining with China’s national conditions and securities market development foundation. At the same time, it must evaluate some negative and adverse effects brought by the introduction of a system, and whether it can be reasonably expected to establish appropriate control mechanism to regulate produce such negative effects.The second is the introduction of the value of the securities class action (function) and obstacles analysis, which analyses the function and value of American securities class action under the guidance of function and value. Also, it will draw a conclusion that these obstacles is not obvious in our country or even be overcome by setting the corresponding restriction mechanism through the introduction of possible obstacles in securities class action. And then think that the introduction of securities class action is imperative by combining the present situation of securities market in China.The fourth chapter, on the one hand, it is mainly introduce American securities class action attitude, guiding ideology and the path. As for as the attitude, the author deem that it could design a set of securities class action plan with Chinese characteristics which bases on the introduction of the general direction of the securities class action and refers to the experience of other countries in introducing of American securities class action by combing with China’s specific national conditions. On the guiding ideology, it should be further correct prejudices in our country securities market financing function and strengthen and attach great importance to the protection for small and medium-sized investors. At the same time, it should be explicit and specific when designing securities class lawsuit system in our country which makes it operational. It should be two-step strategy in the introduction of the specific path. On the other hand, it is the specific design for the introduction of the securities class action. First, amend the civil procedure law and formulate the securities class litigation law; second, establish the "opt-out" rule; third, prevent "rampant litigation" system designing; fourth, other group members’ rights guarantee.