First, the significance of representative litigation system in solving group disputes.
The main functions of the class action system are:
1. Solve the contradiction between numerous subjects of litigation procedure and limited space capacity, and expand the function of judicial dispute settlement;
2. Ensure that disputes with the same litigation object or belonging to the same category can get the same judgment, and avoid the court making contradictory judgments;
3. Enhance the victim's ability to confront powerful organizations such as modern high-tech enterprises or industries, and earnestly safeguard the legitimate rights and interests of victims;
4. Reduce litigation costs and improve litigation efficiency. [ 1]
Second, the limitations of China's representative litigation system at this stage
(A), from the perspective of litigation costs [2]
Some people think that litigation cost is the cost of production justice, including the "trial cost" borne by the state and the "litigation cost" borne by the parties. [3] From the perspective of trial cost.
(1) The court's filing and examination work is heavy. It is extremely complicated for the court to examine whether the litigation objects of multiple parties are the same or belong to the same category, whether the litigation requests or defense methods are the same, and whether the representatives are qualified.
(2) After accepting an uncertain number of cases, it is necessary not only to make an announcement for not less than 30 days, but also to review and register the parties who come one after another.
(3) If the parties can't choose a suitable litigation representative, the court will also agree or select a litigation representative with all the parties.
(4) The court must supervise whether the representatives are loyal to their duties.
(5) After the case is concluded, if the parties bring a lawsuit during the limitation period, the court shall examine their request and make a judgment.
Obviously, under the constraint of this system, the more parties involved in the representative litigation case, the heavier the above tasks of the court, and the greater the court time, energy and investment cost that the judge needs to invest.
1, from the aspect of litigation cost
(1), before filing a lawsuit, the party who intends to file a representative lawsuit must contact other parties to solicit their intention to file a lawsuit, and then discuss the specific litigation request with the other party, recommend a suitable litigation representative, collect relevant evidence materials, and find a satisfactory attorney;
(2) After the lawsuit is filed, any claim is changed or abandoned, and the claim of the other party is recognized and executed.
When settlement, withdrawal and other litigation matters occur, all parties must negotiate and reach an understanding, so as to make corresponding litigation countermeasures. If the representative of litigation changes, the representative must be re-determined.
(3) Transportation expenses, attorney fees and other litigation expenses. The more victims involved in representative litigation, the more difficult it is to search for relevant information and reach a litigation agreement, and the greater the transaction cost that the parties need to pay.
The high litigation cost sets an insurmountable threshold for the parties to the dispute to file a representative lawsuit.
(B) from the perspective of the qualifications of the parties
Traditional theory emphasizes that litigants must have a direct interest in the case, and such litigants are qualified litigants. The traditional theory of civil litigation subject qualification has also been impacted and challenged in modern litigation. The characteristics of modern litigation are: "one party to a dispute is often a large number of victims in a weak position, which has the proliferation of group industry in terms of quantity and interests." 4[4] As a modern lawsuit, group litigation often goes beyond individual interests, and its disputes are socialized and politicized because of their publicity, that is, a large number of group disputes appear, which makes the issue of personal self-interest become a wide-ranging public welfare issue. 5[5] The traditional theory of litigation right and the theory of party eligibility have closed the door to protect public interests. To a certain extent, it also closed the door to the protection of individual rights and interests. In the incident of "Toshiba" notebook computer and "Mitsubishi" car in Japan in 2000, many consumers in China could not realize the relief of their damaged rights through convenient and effective class action mechanism, which is a typical example. [6] There are several problems in the provisions on the qualification of representative litigants in China. 7[7]
(1) In the representative litigation with uncertain number, the right registration system used to finally determine the number has negative effects. Because most group lawsuits are "small majority" lawsuits, many victims will have no chance or are unwilling to register their rights under the condition of underdeveloped information field or weak awareness of rights, resulting in a big difference between the total amount of compensation registered and the illegal income of the offenders, thus conniving at the offenders.
(2) The representative's right of appeal needs to be granted by other members, and the emphasis on the protection of private interests makes it difficult to file a class action. Because of the wide range and large scale of stakeholders involved in group disputes, it is undoubtedly a complex and arduous task to require the representative to file a lawsuit in the name of "group" only when he has the right to execute the lawsuit granted by other parties. Moreover, in some group disputes, it is almost impossible to obtain clear authorization from all parties.
(3) The representative needs to be explicitly granted the right of appeal by all parties with registered rights, and there is a contradiction between the effective judgment of the court and the "indirect" binding force of unregistered rights holders in the system, which is easy to produce a "free rider" mentality. Perhaps the final result may be that no one will file a lawsuit first and wait for the judgment to be directly applied. At the same time, personal interests are not guaranteed and social interests are destroyed.
(3) From the generation and authority of the litigation representative.
1, litigation representative:
The litigation representative in China needs the recommendation, consent and authorization of the representative. However, the large number, strong uncertainty and wide distribution of group litigation make it impossible to fully authorize, and it is even more difficult to obtain unanimous authorization. Even if the authorization stipulated in the Civil Procedure Law is realized, it is only the authorization of the obligee within the scope of registration, because the representative cannot represent those who have been infringed but have not registered, but they and their infringement are objective. It can be said that the design of this system itself is at the expense of the exercise of part of the obligee's right to appeal.
2, litigation representative litigation representative authority:
"Civil Procedure Law" stipulates: "If a representative changes, waives or acknowledges the claim of the other party and makes a settlement, he must obtain the consent of the representative." It is difficult for representatives to dispose of substantive rights in litigation. Due to the large number of litigants and scattered residences, it is necessary to obtain the consent of all parties to dispose of substantive rights. Not only do representatives spend a lot of time, manpower and material resources, delay litigation and increase litigation costs, but also the number of parties is prone to differences, which makes representatives unable to exercise their representation and ultimately leads to litigation failure. Specifically:
(1). The separation of substantive rights and litigation rights of litigation representatives ultimately leads to the difficulty in protecting litigation rights of litigation representatives. If the litigation representative does not enjoy the right of substantive punishment, he cannot independently exercise his rights and safeguard his legitimate rights and interests according to his own will and judgment. The authority of the representative is equivalent to the general agent in the entrusted litigation agency, regardless of the party identity of the representative.
(2) The litigation representative lacks the right to dispose of the entity, so he can't make concessions and understanding independently on the substantive issues, and needs to seek the consent of the principal. Once someone insists on opposing, the mediation case will be ruined. Set up obstacles for mediation to close the case. At best, their litigation rights only passively collect the wishes of the parties and tell their descendants.
(4), from the perspective of the same litigant [8]
The fact that the subject matter of litigation is the same or belongs to the same kind leads to very strict restrictions on the filing of representative litigation. Articles 54 and 55 of China's Civil Procedure Law stipulate that a certain number of parties' representative actions have the same object or kind, and those with uncertain number of parties have the same object. These two provisions show that the scope of application of representative litigation in China is based on the same or similar litigation objects. Just because "legal or factual issues" are the same, * * * and litigants can bring representative litigation. In practice, when multiple parties are harmed by the same fact, different parties may sue by contract or tort according to different legal provisions, and their rights and obligations are different, resulting in multiple parties being harmed, and the litigation objects are different or the same. In this case, according to the provisions of China's civil procedure law, although there are many victims, they cannot bring a representative lawsuit because they do not meet the conditions for representative litigation.
(5) From the perspective of indirectly expanding the effectiveness of the judgment [9]
The indirect expansion of the effectiveness of the judgment leads to the widespread existence of "hitchhiking" psychology, which makes it difficult for representatives to file a lawsuit. The indirect expansion of the judgment effect in China's civil litigation means that in the lawsuit of an uncertain number of representatives, if the right holder who did not participate in the registration filed a lawsuit during the limitation period, the people's court found that his request was established and the ruling was applicable to the judgment and ruling made by the people's court. This provision is conducive to maintaining the basic requirement of judicial unity to treat the same situation equally, and also embodies the principle of litigation economy. However, the indirect expansion of the effectiveness of the judgment can easily encourage the parties to "hitchhike" mentality. Litigants spend a lot of manpower, material resources and financial resources in litigation, and may also bear the legal consequences of losing the case. However, for the parties who did not participate in the registration because of the same fact, if they sue after winning the case, the court can directly decide to apply the original judgment, and these people will get the same benefits at a very small cost. The consequence of this will be that the parties who have suffered losses will wait for a "free ride" without suing first. Judging from the mentality of the parties, no one is willing to take the lead in bringing a lawsuit to the court so that others can enjoy the success and share the benefits.
(6) From the perspective of appeal [10]
The people's court ruled that if the judgment made by the people's court is applied, an uncertain number of representatives of the parties bring a lawsuit, and the right holder who did not participate in the registration brings a lawsuit during the limitation period, which conflicts with the system of final appeal of second instance, no appeal may be made. According to the provisions of the Civil Procedure Law, there are four kinds of rulings that allow the parties to appeal: inadmissibility ruling, jurisdiction objection ruling, dismissal of prosecution ruling and dismissal of bankruptcy application ruling. Accordingly, when the obligee who did not participate in the registration of representative litigation filed a lawsuit within the limitation of action, he could not appeal against the ruling made by the people's court to apply the original judgment, which solved the substantive problem. The cases to which the ruling applied were all civil rights disputes, non-civil rights disputes, and the parties were not allowed to appeal, which conflicted with the system of final appeal of second instance.
(seven), from the perspective of jurisdiction:
Level jurisdiction is the jurisdiction of the grassroots people's court or the intermediate people's court, and if the secondary people's court can have jurisdiction, how to divide the work; As far as territorial jurisdiction is concerned, the provisions of general territorial jurisdiction or special territorial jurisdiction apply. There are no specific provisions on the jurisdiction of representative litigation cases in China's current civil procedure law and related explanations. In practice, if many parties bring a lawsuit in the same court or the same plaintiff brings a lawsuit in the same court, the court has the right to exercise jurisdiction, and of course there is no jurisdiction problem. However, the actual social situation varies widely, and there are many parties to group disputes, which may often be scattered in multiple court jurisdictions, even across counties and provinces, making it difficult to concentrate litigation. It may be too principled and inflexible to directly apply the traditional civil litigation jurisdiction rules to the representative litigation. For example, the jurisdiction of a civil case caused by an infringement is exercised by the people's court in the place where the infringement is committed or the defendant's domicile, and it is still given priority in the case of scattered infringement, which is obviously not conducive to fully protecting the civil rights of all parties, nor is it conducive to the people's court's centralized investigation and evidence collection and trial of the case, so that the case can be solved comprehensively, reasonably and effectively.
Thirdly, the perfection of the litigation representative system in China.
(1) should be extended.
The scope of application of litigation representatives in China is the same or similar litigation object, and does not involve the same facts or legal issues. This regards the litigation representative system as a special form to deal with many lawsuits, which limits the application of the litigation representative system. According to Yitong, the so-called litigation object is a civil legal relationship that is controversial and submitted to the court for judgment, that is, the relationship of civil rights and obligations. In this way, although there are the same factual problems, the litigation representative system cannot be applied to the lawsuits filed by the parties according to different legal provisions, such as contractual relations and tort. This will inevitably limit the litigation representative to a narrow range. Therefore, it should be broadly interpreted as allowing the application of the litigation representative system if there are the same factual or legal problems.
(2) The procedural requirements should be relaxed when registering rights in the litigation representative system with uncertain number.
As mentioned above, the system of litigation representatives with uncertain number in China should be applied through the registration of rights, so that the number can be determined. Those who are not registered and do not claim their rights during the limitation of action will not be protected according to the principle of non-litigation. However, the current class action system in the United States takes the opposite approach. If the obligee fails to declare to withdraw and dispose of its substantive rights, it shall be regarded as a party and protected or restricted. In contrast, China's current representative litigation registration procedure is similar to the "declaration to join" in the US Federal Civil Procedure Rules 1938, which has been abandoned by the Federal Civil Procedure Rules 1966. This abandonment is the result of weighing the advantages and disadvantages of empirical Americans. Registration or declaration has its advantages and disadvantages. Although the parties are identified after registration, there is no protection for unregistered obligees, and the infringer will get illegal benefits. Although the practice of declaration and withdrawal seems to ignore the substantive disposition right of the parties, compared with the special protection and prevention function of group public interest litigation, the former should give way to the latter.
(3) expanding the litigation rights of litigation agents
1. On the premise of standardizing the qualifications of litigation agents, we can consider giving them wider litigation rights and leaving them more room for activities in litigation. Under the framework of the existing representative litigation system in China, the litigation behavior of litigation representatives in litigation activities is relatively limited. The most concentrated embodiment is that the representative has no autonomy in the disposition of substantive rights and litigation rights. From the consideration of legislators, it is to prevent the malicious behavior of litigation representatives from causing losses to other parties. But fundamentally speaking, this arrangement does not conform to the inherent mechanism and purpose of the group litigation system itself. This is because the group litigation system was originally established to solve large-scale disputes, and its value lies in its efficiency and economy. The litigation representative can be regarded as a "condensed" party. To ensure that the whole litigation activity is truly meaningful, it must be given full and comprehensive litigation rights, including the right of disposition, especially the right of substantive disposition. Only in this way can we truly reflect the "representative" role of litigation representatives. If the representative's behavior is greatly restricted and he is not given full freedom of will, his hands and feet will undoubtedly be bound, which is not conducive to the full play of his positive role. More importantly, asking the representative to seek the consent or authorization of the representative at a critical moment will inevitably lead to the delay of litigation and unnecessary procedural expenses, which is contrary to the original intention of establishing the group litigation system. Especially in the case of a large number of parties and wide distribution, this approach is not feasible or the cost is quite high. Therefore, it is necessary for us to learn from some handling methods of class action in the United States and give the representative the right to exercise the right of disposition (especially the right of substantive disposition) under the supervision of the court, so that the representative action system in China can completely go out of the framework of concurrent litigation and become a veritable large-scale group dispute resolution mechanism to meet the needs of modern society [1 1] 2. Strengthen the examination and supervision of the qualifications of representatives.
Constantly expand the litigation rights of representatives, especially the substantive punishment rights, and require litigation representatives to act in the interests of the represented. Therefore, the litigation qualification, litigation ability and necessary sense of responsibility of litigation representatives are problems that need to be solved.
It should be further clarified and concretized in China's civil procedure law, and the positive role of the court in this respect needs to be strengthened. China's current civil procedure law does not clearly stipulate the conditions of litigation representatives, which is obviously not conducive to the effective supervision and restriction of representatives. As a qualified litigation representative, especially on the basis of expanding his litigation rights, he should have the minimum conditions to protect the interests of the principal from infringement. Include: 1. The litigation representative and other members should have the same interests; 2. Have litigation ability; 3. Be able to fairly and honestly safeguard the legitimate rights and interests of the principal parties.
In addition, "when the representative cannot perform his duties well, the represented party has the right to apply to the people's court for the replacement of the representative; At the same time, the people's courts should also undertake the necessary supervisory duties. If the litigation agent is found to be unqualified during the trial, he also has the right to notify the parties to change the agent. " [12] In addition, there should be corresponding and timely relief measures for the dereliction of duty of the litigation representative or the malicious behavior of colluding with the other party to harm the interests of the representative. For example, the people's court can declare his malicious litigation invalid. On the issue of the generation of litigation representatives, we should fully respect the wishes of the parties. When it is impossible to select or negotiate the litigation representative, the people's court should not forcibly appoint him, but should inform these parties that they can conduct another lawsuit.
Give certain groups the right of appeal.
Modern society respects individual rights, but the realization of individual rights often needs to be realized through social organizations or groups to which they belong, and the behavior of all groups can ultimately be attributed to the behavior of individuals who make up groups [13]. Therefore, we can learn from Germany's practice, respect the choice of the parties in accordance with the principle of autonomy in private law, set up group litigation in some fields, and directly file public interest litigation based on the group's articles of association. If the parties are unable or unable to choose the litigant, the institution stipulated by laws and regulations may be the litigant [14]. Priority can be given to consumer protection groups and environmental protection groups that have the right to appeal, and they can be given the right to directly file infringement litigation or inaction litigation (stop infringement) relief [15]. In securities group litigation, we can refer to the practice of China Consumer Protection Association [16] and set up an "investor protection association". Directly represent the interests of shareholders and engage in litigation activities on behalf of shareholders.
(V) Blank legislative conception of civil procedure law.
1. jurisdiction.
Based on the principle of jurisdiction of intermediate people's courts, cases with simple cases, few parties and small subject matter are under the jurisdiction of basic people's courts, and cases with large number of cases and huge subject matter are under the jurisdiction of higher people's courts. The general principles of civil procedure law apply to territorial jurisdiction.
2. Enlarge the problem. After the judgment of the first instance, if some representatives appeal and some give up the appeal, the appeal behavior of some representatives in the appeal proceedings is valid for all members. The court of appeal shall notify other representatives who have given up the lawsuit to participate in the appeal hearing. If you don't want to participate, you can let some representatives who can appeal be litigation representatives in the appeal trial, and the judgment of the second instance is valid for everyone; If the first-instance judgment, all agents ad litem give up the expansion, some parties in the group refuse to accept the original judgment, and some parties have no right to appeal. [ 17]
A. What do you usually do when you study Japanese?
In fact, after learning Japanese, there are still many future employment directions. Japanese teacher, Jap