Study Of Legislation And Judicial Practice Of Group Litigation

This paper aims to discuss procedures to solve group disputes. The significance of establishing group action system is that it can enlarge action capacity while the traditional one-to-one action mode can't. However, many problems still exist in its application process. This paper consists of four chapters listed as follows:Chapter one introduces some basic concepts of group action. For research purpose, group action in this paper is defined in a broader sense, which includes series actions often adopted in judicial practice.Chapter two discusses the concepts, characteristics and controversial issues of America's group action, Germany's group action and Japan's selected litigant action. It's significant to absorb good ideas from these countries to construct our country's group action mode.Chapter three analyses the current situation of our country's representative action including its strengths and weaknesses. At present, the representative action is rarely used in judicial practice in China mainly due to its own defects, lacking of detailed legislative provisions applicable in practice and the passive judicial policy adopted by the Supreme Court. Besides, court's failure to act and lacking of incentive mechanism for representatives as another two factors are analyzed. At the same time, the author states that government interference does not restrict the starting of representative action system.Chapter four states the construction of action mode. The guiding principle is that the rights and obligations of the plaintiffs and that of the defendants, the rights and obligations of the plaintiffs and that of the representatives must be kept in balance. It's necessary to establish diverse action modes in light of the variety of action objects and scales. For the cases with the same action objects, group action or public interests action can be adopted. ( This aspect is not analyzed by the author because not much research concerning this aspect is conducted.) For those large scale actions with their rights abandoned, adapted representative action can be used by introducing the "withdraw system" of America's group action. For those actions with large objects and of medium scales, series actions especially test action will be appropriate. When using the America's group action for reference, the author puts forward the idea of "resuming the abandoned rights" which means that only when the rights of litigants concerned reach the level of rights abandonment can court adopt the "withdraw system" . In order to perfect China's representative action system, the author puts more emphasis on the technique aspects instead of only focusing on the conceptual level. Using the technique problems encountered in practice as examples, the author analyzes representative action's different categories, its jurisdiction problem, the rights and obligations of representatives and judgment modes. Using the cases of house demolition conducted in person as data, the author analyzes series actions' characteristics, strengths and weakness. In conclusion, group disputes especially those of small and medium size can often be solved by means of series actions, which resort to traditional civil procedure law practice such as principal agent and consolidate prosecution. Test action will be a good option to enlarge action capacity.