Right To Claim For Damage Compensation In The Consumer Civil Public Welfare Lawsuit

China has formally established a public interest litigation system since 2012 and has clearly stipulated in the Consumer Protection Law that consumer associations can file consumer civil public welfare lawsuit.In 2016,the Supreme People's Court promulgated the Interpretation of Several Issues Concerning the Application of Law in the Trial of Consumer Civil Public Welfare Lawsuits(hereinafter abbreviated as Interpretation)and limited the types of litigation requests to stop infringement,remove obstacles,eliminate danger,advocate nullify unfair terms and offer apologies.It did not clearly stipulate whether the right to claim for damage compensation could enter the consumer civil public welfare lawsuit system.However,with the development of society,some operators do not hesitate to compromise their public interests and consumer rights to achieve their own profit goals when participating in market competition,resulting in frequent occurrence of illegal business operations in the market.As a single consumer,due to the constraints of time,cost and knowledge,it is difficult to safeguard their rights and interests through judicial measures.To set up the protection of the legitimate rights and interests of consumers,consumer civil public welfare lawsuit must establish a litigation of damages in order to deter illegal operators and compensate consumer public welfare damage at the same time.As to whether the right to claim for damage compensation can be included in the consumer civil public welfare lawsuit system,the academic community mainly has a discussion on the classification on public welfare lawsuits and private welfare lawsuits,the legitimacy of the consumer association's right to claim for damage compensations as the plaintiff and the special allocation of the damage compensation claims of the procuratorate.The author believes that the right to claim for damage compensation should not be excluded through the division of public welfare and private welfare.There is no clear boundary between them and the public welfare should be compensated as well.Moreover,the rights of consumer associations are derived from the provisions of the law and their own responsibilities and advantages which means that they have professional experience in protecting consumer civil public welfare even if there is no clear provision in the legislation for the damage compensation claims,there should be a compensation in practice in the lawsuit system.The procuratorial organs have the right to claim for damage compensation based on their ability to handle public welfare lawsuit cases.The right to claim for damage compensation has not been included in the consumer civil public welfare lawsuit system,except that it is controversial in terms of academic reason.It is also because the legislator has identified the function of the consumer civil public welfare lawsuit as the suppression of unlawful acts,the prevention of future consumer rights and interests,and the public welfare in practice.Administrative law enforcement is the mainstay of relief.In the judicial process,judges hold discreet attitudes based on restoration of commonweal and judge the manner of liability prescribed by law.The consumer association's qualification to declare damage compensation claims is controversial.The author believes that the function of consumer civil public welfare lawsuit should be changed to deter illicit operators and compensate the public welfare.Under the circumstances of the administrative remedy's failure,the public welfare should be remedied by the claim for damage compensation and the claim for damage compensation in judicial process should become a useful attempt in the lawsuit system.Based on the legislative process of foreign countries and region,we can see that the claim for damage compensation is the inevitable direction of the development of the public welfare lawsuit system.The establishment of damage compensation claims depends on the improvement of supporting systems.Finally,the author proposes three suggestions on the procedural obstacles to the establishment of claim for damage compensation,namely the determination of the amount of damages,the distribution of compensation and the notification of victimization.The amount of damage compensation should be determined by the operator's illegal income and based on the consumer's proof of loss and the judicial discretion should be considered in the determination of damage compensation,establish a corresponding consumer welfare fund and set up an announcement registration procedure to prompt the interests equalization of claims.