On The Reconstruction Of Representative Litigation System In China

Representative Litigation is a kind of group litigation , which is carried on by the parties' representative when there are so many parties on one side who hold or share the same benefits in law, and they can not carry on the joinder by themselves. American Class Action, Germany Group Action and Japanese Action of Parties Selection are relatively on behalf of the worldwide group action system. In fact, our country's representative action was established by referencing several foreign class actions and rooting our own circumstance. No.54 and 55 items in Civil Procedure Law of the People's Republic of China concern about the representative action. The court detailed further the principles of implementation in the Supreme People's Court's opinion, which is about implementing Civil Procedure Law of the People's Republic of China and was released in 1992. However, in as much as it is so simple and brief, there are some shortages of our country's Representative Action.In practice, Representative Action is implemented in many areas, especially some extensive and complex group disputes the moment it have some advantages that can not be substituted by the traditional One to One litigation or joinder, and it has been presenting tremendous vitality in our country's law practice. Representative Action should be an effective litigation system, and produce great litigation benefit. However, in practice, there are many disadvantages and shortages, such as excessive litigation cost, lack of motivating regulations, infantility of protecting the party members' benefits, limitation of the implementation of the representative litigation court decision, as a result, in representative action can not be always captured public attention and used practically.The correct understanding about the principles of Representative Action has been the new start point to modify the representative action in our country. First, from the value of the law, it is generally accepted that the modern democratization litigation has two key principles, fair and effective, which is the litigation systems' ideal and will be pursued forever. Representative Action can help the aggrieved party associate with each other in on side to confront with the other side for their rights. This shows the fairness value which the Representative Action pursues. Meanwhile representative action system has the function that pool several detached cases into one, avoided effectively the litigation repetition on time and space, economized, economized litigation cost, raised a litigation efficiency, avoided the emergence of the confliction judge, and promised court judgment's consistency and confirmation. In addition, Representative Action is not only to resolve dispute, but also adjust indirectly some social relation. Because of the Representative Action, the existence of some social values can be confirmed, and some social problems related with disputation can capture the attention of social members. This will influence government department and social authorities to establish related policy and implement, which contributes to the equity and justice of our society. Second, from the aim of civil litigation, to establish the civil litigation system can implement the social order from dealing with civil dispute, and can protect the civil rights. The Representative Litigation system is an important system in the civil case, which match the aim of civil litigation. It can either protect the party's legal rights, or deal with the civil dispute at one time, avoiding the waste of judicial resource, implement country's social governing function, which have an aggressive meaning to decrease social conflict, maintain social order, promote social development. And then, according to the proper party theories and res judicate, if there are many people in one party, the representative can litigate, as the proper party, seeking the same or shared benefit of most people they represent through any litigation act. The effect of court judgment can extend to most people who they are on behalf of, and do not attend the litigation.Because of the economic globalization, for carrying well on international trade and culture communication, and deal with international and interregional civil dispute effectively and conveniently, countries are all longing for discovering the trend of civil litigation system, learning from other's strong points to offset one's weakness. One of the most important aspects is the inosculation and same tendency among various group litigation systems. The reconstruction of our country's Representative Litigation system should reference foreign group actions and learn from them. It can not be denied, although our current Representative Litigation has many disadvantages and shortages, it still have some reasonable factors, which meets the market economy performance needs, matches the efficiency principle of our country market economy, and can also protect the civil party's right effectively. Therefore, it has no necessity to deny the representative litigation system completely. For the reconstruction of the representative litigation system, firstly, the following several principles should be followed: the law equity and litigation performance should be the pursuing value of the representative litigation system; dualism system of lawsuit purposes should be the purpose of the representative litigation system; learn more from others with the international trends. Secondly, reconstruct some Representative Litigation items. When two different representative litigation whose representative people number is sure and not sure, are cancelled, and reconstructed into one, the following factors should be concerned to establish the system. 1. Introduce public litigation and Class Action system. In fact, our country's Representative Litigation is a kind of group litigation with some private factors. This leads to a bottleneck effect on dealing with the dispute, inasmuch as more and more public litigation cannot adequate well with the Representative Litigation. Introduce the beneficial parts of class litigation system the moment that public litigation is introduced. That ask some class to deal with public party dispute can make it is easier to be settle the social majority dispute. 2. Perfect the related Representative Litigation regulations. Representative Litigation is a new kind of litigation method, combing co-litigation with litigation act. The most important role is lies in a representative in the litigation, who should be different with the party in the qualifications, creation, right, responsibility and benefits etc. so the perfect and related systems should be constructed. 3. Strengthen court's intervention system for Representative Litigation.4. Confirm the best governing system to protect the party which has numerous people.5. It is nature that the judicatory effect applies to people who clearly show they are a number of the litigation group. However, who do not clearly show will be under direct extending system. 6. The burden of litigation expenses can draw lessons from "risk litigation" system, linking the litigation result and lawyer remunerate. This can reduce litigation expenses. assist it to bear by who lost in lawsuit should offer the litigation expenses. 7. In the Representative Litigation, because of right damaged, one side which has many parties will usually be placed in a minority position. The accused reverse. So it is reasonable that the accused has a responsibility to offer proofs.