The "Civil Procedure Law" promulgated in 1991 in our country was based on the summary of judicial practice experience. In order to resolve group disputes, it absorbed and learned from the legislative experience of group litigation in the United States and Japan's selected party litigation. The system of group litigation in our country—representative litigation system—has been established. In 1992, the Supreme People's Court issued the "Opinions on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China" which further specified the system.

1. The importance of the representative litigation system in resolving group disputes

The main functions of the group litigation system are:

1. To resolve disputes involving many subjects and Conflicts arising from the limited space capacity of litigation procedures, expand the function of judicial dispute resolution;

2. Ensure that disputes with the same subject matter or the same type of litigation can obtain the same judgment, and avoid the court from making contradictory judgments;

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3. Enhance the ability of individual victims to compete with powerful organizations such as modern high-tech enterprises or industries, and effectively safeguard the legitimate rights and interests of victims;

4. Reduce litigation costs and increase litigation costs efficiency. [1]

II. Limitations of my country’s representative litigation system at this stage

(1) From the perspective of litigation costs [2]

Some people think Litigation costs are the "costs of producing justice," including "trial costs" borne by the state and "litigation costs" borne by the parties. [3] From the perspective of trial costs

(1) The court case filing and review work is heavy. The court needs to examine whether the subject matter of litigation of multiple parties is the same or of the same category, whether the litigation claims or defense methods are the same, and whether the representative is qualified, etc., which is extremely complicated.

(2) After accepting a case with an uncertain number of people, it is not only necessary to make an announcement for no less than 30 days, but also to review and register the parties who come one after another.

(3), if the parties cannot nominate a suitable litigation representative, the court will have to negotiate with all parties or select a litigation representative.

(4) The court must supervise whether the representative is loyal to his duties.

(5). After the case is concluded, whenever a party files a lawsuit within the statute of limitations, the court must review the request and make a ruling.

Obviously, under the constraints of this system, the more parties involved in representative litigation cases, the heavier the above-mentioned work tasks of the court will be, and the greater the time, energy and investment costs of the judges and the court will be.

1. In terms of litigation costs

(1) Before filing a lawsuit, the party intending to file a representative action must contact other parties to solicit their intention to file a lawsuit. , and then discuss with each other the specific litigation claims, recommend appropriate litigation representatives, collect relevant evidence materials, find satisfactory attorneys, etc.;

(2) After the lawsuit is filed, any changes in the litigation claims or When litigation matters such as giving up, acknowledging the other party's claims, conciliating or withdrawing a lawsuit, etc., all parties must be consulted and reach consensus before corresponding litigation countermeasures can be made. If there is a change in the litigation representative, the representative must be re-determined.

(3) Litigation expenses such as transportation fees, attorney fees, etc. The more victims involved in a representative lawsuit, the more difficult it will be to search for relevant information and reach a litigation agreement, and the greater the transaction costs that the parties will have to pay.

Exorbitant litigation costs have set an insurmountable threshold for parties involved in disputes to initiate representative litigation.

(2) From the perspective of the parties’ qualifications

Traditional theory emphasizes that litigants must have a direct interest in the case, and such parties are qualified parties. The traditional theory of subject qualification in civil litigation has also been impacted and challenged in modern litigation. The characteristics of modern litigation are: “One of the parties to a dispute is often a large number of vulnerable victims, which leads to the proliferation of group industries in terms of number of people and interests.

”4[4] As a modern type of litigation, group litigation often transcends personal interests. Its disputes are socialized and politicized because of their fair nature. That is, the emergence of a large number of group disputes has made the interests of individual individuals The issue of private interests has become a broad public interest issue. 5 [5] The traditional theory of litigation rights and the issue of party qualifications have closed the door to the protection of public interests and to a certain extent, the door to the protection of individual rights and interests. In the Japanese "Toshiba" notebook computer and "Mitsubishi" automobile incidents in 2000, many Chinese consumers were unable to obtain relief for their damaged rights through convenient and effective group litigation mechanisms. This is a typical example [6] Representative of our country. There are several problems regarding the eligibility of parties in personal litigation: 7[7]

(1) In representative litigation where the number of persons is uncertain, the rights registration system used to ultimately determine the number of persons has negative consequences. Effect. Since most group lawsuits are "small majority" lawsuits, in areas where information is underdeveloped or where rights awareness is not strong, there will be actual situations where many victims have no chance or are unwilling to register their rights. This will This leads to a large discrepancy between the total amount of registered compensation and the illegal gains of the offender, thereby indulging the offender.

(2) The representative’s right to sue must be obtained through the express authorization of other members. The focus on the protection of private interests makes it difficult to initiate group litigation. Due to the wide range and large scale of interest parties involved in group disputes, representatives are required to act as a "group" only if they have been granted the right to implement litigation one by one by other parties. Litigation in the name of a party is undoubtedly a complex and arduous task, and in some group disputes where the parties cannot be completely identified, it is almost impossible to obtain the express authorization of all parties.

(3) The representative needs to be expressly granted the right to sue by all parties who have registered their rights, and there is an institutional contradiction between the fact that the effective judgment of the court has "indirect" binding force on those who have not registered their rights, and it is easy to create "convenience" "Che"'s lazy litigation mentality. The final result may be that no one files a lawsuit first and waits for the judgment to be directly applied. While personal interests are not protected, social interests are completely destroyed.

(3) From the perspective of the representative litigation, the generation and authority of the representative litigation

1. The generation of the representative litigation:

The generation of the representative litigation in my country requires the consent of the represented person Recommendation, agreement and authorization. However, the large number of people involved in group litigation, the uncertainty and the widespread distribution, make it impossible to fully authorize, and it is even more difficult to obtain unanimous authorization for civil litigation. The authorization stipulated by the law is only the authorization of the rights holder within the scope of registration, because the representative cannot represent those who have been infringed but have not registered, but they and the infringement they have suffered exist objectively. It can be said that this system design. This is at the expense of the exercise of part of the right holder’s litigation rights.

2. Litigation representative’s authority:

The Civil Procedure Law stipulates: “Change of representative. , abandon the litigation claim or admit the other party's litigation claim and conduct reconciliation, must obtain the consent of the represented party. "It is very difficult for representatives to dispose of substantive rights in litigation. Due to the large number of parties involved in representative litigation and their scattered residences, the disposal of substantive rights requires the consent of all parties. Not only does the representative have to spend a lot of time, manpower and material resources, This causes litigation delays and increases litigation costs, and the large number of parties can easily lead to disagreements, making it impossible for the representative to exercise his right of representation, and ultimately leading to the inability to proceed with the representative litigation:

( 1) The separation of the litigation representative's substantive rights and litigation rights ultimately makes it difficult to protect the litigation representative's litigation rights. If the litigation representative does not enjoy the substantive disposition right, he cannot exercise his rights independently according to his own will and judgment and maintain his own legality. Rights and interests. The authority of the representative is equivalent to that of a general agent in entrusted litigation agency, which ignores the representative’s identity as a party.

(2) The litigation representative lacks the power to dispose of entities and cannot handle substantive issues independently. It requires the consent of the parties being represented. Once someone insists on objecting, the settlement of the case will be in vain. This creates obstacles to the settlement of the case. At best, the litigation rights are passively collected and conveyed to future generations. That’s all.

(4) From the perspective of the same subject matter of litigation[8]

The litigation requirement that the subject matter of litigation is the same or belongs to the same category results in the filing of representative litigation being very strict. restrictions. Articles 54 and 55 of my country's Civil Procedure Law stipulate that in a representative action with a definite number of parties, the subject matter of the action shall be the same or of the same type; in a representative action with an uncertain number of parties, the subject matter shall be of the same type. These two provisions indicate that the scope of application of representative litigation in our country is premised on the same or the same type of litigation subject matter. The same litigant cannot file a representative litigation because of the existence of the same "legal issue or factual issue" . In practice, when the same fact causes damage to many parties, different parties may sue according to different legal provisions. Some may sue based on contractual relationship, and some may sue via tort. Their rights and obligations are not the same, nor are they of the same type. In this case, the facts causing damage to many parties are the same, and the subject matter of the lawsuit is not the same or of the same kind. In this case, according to the provisions of my country's Civil Procedure Law, even though there are many victims, it does not meet the requirements for representative litigation. A representative action cannot be brought.

(5) From the perspective of the indirect expansion of the judgment effect[9]

The indirect expansion of the judgment effect leads to the widespread "free-riding" mentality, which makes the filing of representative lawsuits Difficulties abound. The indirect expansion of the judgment effect in my country's civil litigation refers to a representative action with an uncertain number of persons. If the right holder who has not participated in the registration files a lawsuit within the statute of limitations, and the People's Court determines that his request is established, the ruling shall apply to the People's Court's decision. judgment and ruling. Such a provision is conducive to maintaining the basic requirement of judicial unification that equal situations should be treated equally, and also embodies the principle of litigation economy. However, the indirect expansion of the effectiveness of judgments can easily encourage the parties to have a "free-riding" mentality. The parties participating in the lawsuit have spent a lot of manpower, material and financial resources on the lawsuit, and they may also bear the legal consequences of losing the lawsuit. However, for the parties who have suffered damage due to the same fact and have not participated in the registration, the court can sue after winning the lawsuit. Direct ruling applies to the original judgment, and these people can obtain the same benefits at a very small cost. The consequences of this will cause the parties who have suffered losses not to sue first, but to "free ride". Judging from the mentality of the parties involved, no one is willing to take the trouble to take the lead in bringing a lawsuit in court, and let others enjoy the fruits and share the benefits.

(6) From the perspective of appeal[10]

In a representative action with an uncertain number of parties, if the right holder who has not participated in the registration files a lawsuit within the statute of limitations, the People's Court shall rule that the There is no appeal against the decision, which conflicts with the second-instance and final-instance system. According to the provisions of the Civil Procedure Law, there are four types of rulings that allow parties to appeal: rulings on inadmissibility, rulings on jurisdictional objections, rulings on dismissal of prosecution and rulings on dismissal of bankruptcy applications. Accordingly, when a right holder who has not registered in a representative action files a lawsuit within the statute of limitations, the People's Court's ruling that the original judgment is applicable cannot be appealed. This kind of ruling solves substantive issues and the ruling applies. The cases are all civil rights and interests dispute cases, which are not non-civil rights and interests dispute cases that are finalized by the first adjudication. The parties are not allowed to appeal, which is in conflict with the second instance final adjudication system.

(7) From a jurisdictional perspective:

Whether the level of jurisdiction is under the jurisdiction of the grassroots people's court or the intermediate people's court. If both the second-level people's courts can have jurisdiction, how should the division of labor be done? ; In terms of geographical jurisdiction, whether the provisions of general geographical jurisdiction shall apply or the provisions of special geographical jurisdiction shall apply. Regarding the jurisdiction of representative litigation cases, my country's current Civil Procedure Law and related interpretations do not have specific and clear provisions on the jurisdiction of representative litigation cases. In practice, if many parties have sued the same court or the same plaintiff has sued the same If a lawsuit is filed in a court and the court has jurisdiction, of course there will be no question of jurisdiction. However, the actual social conditions vary widely. There are many parties involved in group dispute cases, which may often be scattered within the jurisdiction of many courts, or even across counties or provinces. It is inconvenient to conduct centralized litigation and directly apply traditional civil litigation jurisdiction rules. , for representative litigation, it may appear to be too principled and lack the flexibility it deserves.

For example, the jurisdiction of civil litigation jurisdiction rules over civil cases arising from infringements is exercised by the People's Court of the place where the infringement occurs or where the defendant is domiciled. This is still preferentially applied when the places of infringement are relatively scattered, which is obviously not conducive to fully protecting all parties. It is also not conducive to the people's courts to concentrate on investigating and collecting evidence and hearing cases so that the cases can be resolved comprehensively, reasonably and effectively.

3. Improvement of my country’s litigation representative system

(1) The scope of application must be expanded.

The scope of application of representative litigation in my country is the same or similar subject matter of litigation, but does not involve the same factual or legal issues. This regards the representative litigation system as a special form of handling litigation involving a large number of persons, and limits the application of the representative litigation system. According to Yitong, the so-called subject of litigation is the civil legal relationship where a dispute arises and is submitted to the court for judgment, that is, the relationship of civil rights and obligations. This results in the fact that even though there are the same factual issues, the litigation representatives filed by the parties under different legal provisions, such as some based on contractual relationships and some based on torts, cannot be applied to the representative litigation system. This will inevitably limit the scope of litigation representatives to a narrow scope. Therefore, it should be broadly understood that the application of the representative litigation system is allowed if the same factual or legal issue exists.

(2) When registering rights under the litigation representative system with an uncertain number of persons, the procedural requirements should be relaxed.

As mentioned above, when the system of litigation representatives with an uncertain number of persons in our country is applied, the number of persons must be determined through rights registration. However, for those who have not registered and do not claim rights within the statute of limitations, the system shall be based on The principle of "don't complain, don't respond" is not protected. The current American class action system adopts the opposite approach. All rights holders who have not declared withdrawal from the disposition of their substantive rights will be regarded as parties and be protected or restrained. In contrast, my country's current representative action registration procedures are similar to the "declaration to join" in the United States' 1938 Federal Rules of Civil Procedure, which has been abandoned by the 1966 Federal Rules of Civil Procedure. This abandonment is the result of empirical Americans weighing the pros and cons. There are pros and cons to either registration or declaration. Although the parties are identified after registration, not only are there no protections for the unregistered rights holders, but the infringer will also gain illegal benefits. Although the practice of declaring withdrawal seems to ignore the parties' rights to substantive disposition, compared with the special protection and prevention functions of class actions for public interests, the former should give way to the latter.

(3) Expanding the litigation rights of litigation representatives

1. On the premise of regulating the qualifications of litigation representatives, consideration can be given to granting them broader litigation rights. leaving room for wider activities in litigation. Under the framework of my country's existing representative litigation system, litigation representatives are subject to relatively large restrictions on their litigation behavior in litigation activities. The most concentrated manifestation is that the representative has no autonomy in the disposition of substantive rights and litigation rights. Judging from the legislator's consideration, it is to prevent the occurrence of losses to other parties due to the malicious behavior of the litigation representative. However, fundamentally speaking, this arrangement is inconsistent with the internal mechanism and purpose of the group litigation system itself. This is because the purpose of the group litigation system is to resolve large-scale disputes, and the value of the group litigation system lies in its efficiency and economy. Litigation representatives can be regarded as “condensed” parties. To ensure that the entire litigation activity is truly meaningful, they must be given full and comprehensive litigation rights, including the right of disposition, especially the right of substantive disposition. Only in this way can the "representative" role of the litigation representative be truly reflected. If greater restrictions are placed on the behavior of the representative and he is not given full freedom of will, it will undoubtedly constrain his hands and feet, which is not conducive to the full development of his active role. More importantly, requiring the representative to seek the consent or authorization of the represented person at critical moments will inevitably cause delays in litigation and unnecessary procedural costs, which is contrary to the original intention of establishing a group litigation system. Especially when one of the parties has a particularly large number of people and is widely distributed, this approach is even more unfeasible or the cost is quite high.

Therefore, it is necessary for us to learn from some of the handling methods of class actions in the United States and give representatives the right to exercise disposition rights (especially substantive disposition rights) under the supervision of the court, so that our representative litigation system will be completely consistent with collective litigation. 2. Strengthen the review and supervision of representative qualifications

Continuously expand the litigation rights of representatives, especially entities The right to sexual disposition requires that the litigation representative be able to act in the interests of the represented person. Therefore, issues such as litigation qualifications, litigation capabilities and necessary awareness of responsibility of litigation representatives need to be further clarified and specified in my country's civil procedure law, and the court's active role in this regard needs to be strengthened. my country's current civil procedure law does not clearly stipulate the conditions for litigation representatives, which is obviously not conducive to effective supervision and restriction of representatives. As a qualified litigation representative, especially on the basis of the aforementioned expansion of his litigation rights, he should meet the minimum conditions to provide protection for the interests of the represented parties from being infringed. Including: 1. The litigation representative and other members should have the same interests; 2. Have the ability to conduct litigation; 3. Be able to safeguard the legitimate rights and interests of all parties represented fairly and in good faith.

In addition, “When a representative fails to perform his representative duties well, the represented party shall have the right to apply to the People’s Court to replace the representative; at the same time, the People’s Court shall also assume necessary supervision responsibilities in this regard. If the litigation representative is found to be unqualified during the trial, the party shall also have the right to notify the parties to change the representative.” [12] In addition, there must be corresponding and corresponding consequences for the litigation representative’s negligence or malicious behavior that colludes with the other party to harm the interests of the represented party. Timely relief measures, such as the People's Court can declare its malicious litigation actions invalid. When it comes to the selection of litigation representatives, the will of the parties should be more fully respected. When a litigation representative cannot be selected or discussed, the people's court should not force the appointment, but should inform these parties that they can litigate separately.

(4) Grant certain groups the right to sue

Modern society respects individual rights, but the realization of individual rights often must be realized through the social organizations or groups in which they belong. The behavior of all groups It ultimately boils down to the behavior of the individuals who make up the group [13] . Therefore, we can learn from the practice of Germany, follow the principle of private law autonomy, respect the choices of the parties, set up group litigation in certain areas, and directly prosecute for the purpose of public welfare based on the group charter. If the parties are unable or unable to choose a litigant, an institution stipulated in laws or regulations can serve as their litigant [14]. Consumer protection groups and environmental protection groups can be given priority to file lawsuits, giving them the right to directly file infringement lawsuits or inaction lawsuits (stop infringement) for relief [15]. In securities group litigation, a special "Investors Rights Protection Association" can be established following the practice of the China Consumer Rights Protection Association [16]. Directly represent the interests of shareholders and engage in litigation activities on behalf of shareholders.

(5) Thoughts on the legislative gaps in the Civil Procedure Law

1. Jurisdiction issues.

Based on the principle of jurisdiction of the intermediate people's courts, cases with simple cases, few litigation subjects, and small litigation subjects shall be under the jurisdiction of basic people's courts. Cases with particularly many subjects, huge subject matter, and significant impacts shall be governed by the basic people's courts. The Higher People's Court has jurisdiction. The general provisions of the Civil Procedure Law apply to territorial jurisdiction

2. The issue of upward expansion. After the first-instance judgment, if some representatives appeal and some give up the appeal, the appeal actions of some of the appeal representatives will be effective for all members. The appeals court shall notify other representatives who have given up the lawsuit to participate in the appeal trial. If they are unwilling to participate, they can appeal. If some of the representatives serve as litigation representatives in the appeal trial, the effect of the second-instance judgment extends to all; if the first-instance judgment is made, all litigation representatives waive the extension, and some parties in the group refuse to accept the original judgment, and some parties have no right to appeal. [17]