Locus Standi In Consumers’ Supra-individual Interest Litigation In Spanish Civil Procedure

Locus standi (or standing to sue) in the non-traditional or extraordinary sense is the entitlement held by entities who constitute a third party to the substantive legal relations to bring a lawsuit in order to defend supra-individual or group interests alleged to have been aggrieved in those relations. Within the scope of judicial protection and enforcement of consumers’rights and interests, the extraordinary standing to sue not only plugs the gap of "qualified entities" to file a complaint that existed under the traditional locus standi theory, but also alleviates to a certain extend the imbalance between the accused commercial enterprise and the consumers and users, who are, individually considered, economically inferior to the defendant in most cases. The Spanish legal system differentiates the collective interests from the diffuse interests based on whether the affected or injured persons by the tort or harmful event are "a determined or easily determinable group of consumers" or "an indefinite and hardly determinable plurality of consumers". Under the present procedural law, locus standi for the protection of collective interests belongs to the consumer associations, to other legally constituted entities whose aim is the enforcement of consumers’ rights and interests, to the groups of affected, as well as to the Attorney General’s Office of Spain; while the standing for the protection of diffuse interests exclusively belongs to the consumer associations that, "under the Law, will be considered representative" and to the Attorney General’s Office.The nationwide consumer associations of Spain are reorganized into a pyramidal structure by the Legislator. As a consequence, with the increase of the conflict’s social impact and of the uncertainty or indetermination of the affected consumers and users, the requirements to be met by the qualified associations will be proportionally more rigorous. Besides, the Legislator enlarges the range of the qualified entities via conceding locus standi to other legally constituted entities whose aim is the enforcement of consumers’rights and interests, for the purpose of adapting to the increasingly complicated market. As for the groups of affected, due to the lack of stability and professionality, it’s relatively harder for them to obtain the capacity to sue. And in terms of their capacity to appear at trial, pursuant to the present regulations the persons that, "de facto or with the agreement of the entity, act on their behalf will appear at trial, and the representatives shall prove to the court the explicit authorization of the group members.Similar to China’s representative litigation of an uncertain number of participants, in Spain res judicata obtained in the consumer class litigation will be extended to all non-litigants affected by the same tort or harmful event. In order to uphold audi alterant partem, the Legislators of both states have established the publicity and intervention mechanisms. In particular, different publicity and intervention rules are designed respectively for the defense of collective and diffuse interests in Spain. And to rebalance the need for judicial efficiency and the rights to be heard of those who haven’t been registered with the court in time, the Spanish Legislator has implemented some special rules for the joinder of claims and the hearing regime in the executory process, mechanisms that, together with the intervention, constitute the "three steps" for the defense of audiatur et altera pars.Within China’s current legislature, the qualified entities for the consumer group litigation comprehend the groups of affected under the representative litigation of an uncertain number of participants; and China Consumers’Association and the consumer associations formed in provinces, autonomous regions, and municipalities directly under the Central Government, as well as the pilot people’s procuratorates under the public interest litigation. Comparing to the features in the civil procedure of the similar entities of Spain, the Chinese regime could be improved in plenty of ways, such as optimizing the rules on the mininum number of the group members so as to elude the vexatious or frivolous litigations; assimilating the Spanish definition of the object of action in order to avoid rendering contradictory judgements; amplifying the rights of the representatives of the groups of affected, but meanwhile setting up the supervision and substitution mechanisms, and as a result the judicial efficiency of the representative litigation will be enhanced; adopting the reward mechanism by providing more binary compensation to the representatives and group members who win the lawsuit so as to alleviate the representative-designation and the free rider problems; introducing the techniques of consolidation of individual actions for unifying the judicial rulings; implementing the hearing regime in the executory process in order to preserve audi alteram partem in a more efficient way; classifying the Chinese consumer associations so as to achieve a hierarchy regarding their locus standi.