In modern society, with developed industry and commerce, public hazards, accidents, product defects or other facts occur among the victims of the same cause. The victims may sometimes number in the thousands, and everyone must work together to file a lawsuit. , will inevitably affect the delay of litigation and increase litigation costs, and the damage is small. If the victim personally files the lawsuit, it violates the economic principle of litigation, and the victim will not know how to seek relief. Seeking relief means that rights and interests cannot be compensated, which is detrimental to the general public [1]. In order to protect these "perishable rights", class actions, known as modern litigation types, have emerged. The group litigation referred to in this article generally refers to a litigation system used by various countries to resolve most disputes, such as group litigation in the United States, representative litigation in the United Kingdom, group litigation in Germany and France, and the selected party system in Japan and Taiwan. Representative litigation in mainland my country, etc.
1. Classification of group litigation models
(1) Basis for the classification of group litigation models
We examine the purpose of group litigation based on the purpose of civil litigation - the theory of rights protection. It can be seen that the purposes of class actions in various countries around the world can be roughly divided into two categories: one is to protect personal interests, and the other is to protect social interests. Correspondingly, group litigation can also be divided into two models: private interest group litigation model and public interest group litigation model.
As early as the ancient Roman period, there were private interest litigation and public interest litigation. The former was a lawsuit to protect all personal rights, and only specific people could file it; the latter was to protect the public rights of society. Unless there are special provisions in the law, all citizens can file a lawsuit[2]. Personal interests, social interests and national interests are not completely separate. The boundaries between them are very blurred. "Private legalization of public law and public legalization of private law" is the embodiment of this understanding. This trend is also reflected in rights remedies. When the infringement of personal interests is very small, according to the traditional civil litigation theory and res judicata theory, the individual enjoys the right to dispose and has the right to obtain relief through civil litigation; when the infringement of personal interests is very large, it is considered to have infringed both social interests and res judicata theory. In the interests of the country, prosecutors file public prosecutions on behalf of the country through criminal proceedings for relief; when an individual's interests are not infringed too much, the individual is given the right to private prosecution. When everyone's interests are infringed very little, but the infringement There are many people involved, and the total number of interests that have been infringed is very large. According to the principle of "where there is a right, there must be a remedy", relief channels must be established for this situation to maintain social justice and social order. Since the total amount of "illegal benefits" obtained by the injuring party is very large, and the injured party is a "small majority", the traditional one-on-one litigation method is obviously disadvantageous to the injured party; according to the litigation fiduciary theory, the injured party clearly authorizes the representative to sue , many victims may reluctantly give up their love and let the offender pay for the victim's compensation. It can be tolerated that "rights are perishable" is really rotten, because most of them can rationally calculate the costs and benefits. In this way, even if the injured party loses the lawsuit and compensates, there is likely to be "remainder", which will intensify the infringement of unspecified personal interests and essentially constitute an infringement of social interests. Is it to protect private interests or to protect public interests****? Representative litigation in my country and selected party litigation in Japan are based on the litigation trust theory and are explicitly authorized by the victim, with the purpose of protecting private interests. The American class action system, as long as the victim does not explicitly withdraw from the group, is considered to have given the representative the right to file a lawsuit in his own name, with the purpose of protecting social interests by sanctioning the perpetrator. Under the conditions of market economy, the country operates according to the model of "small government, big society". In addition to the fairness of the transaction, only the two parties are aware of the fairness of the transaction. The parties to the transaction also have the right to dispose, so the government is responsible for the "small amount" Of modern disputes, nothing can be done. It can only be achieved either by using those "private prosecutors" and their lawyers to achieve certain public purposes or the interests of public policies, or by specifically authorizing certain groups to enjoy certain litigation rights.
The two different purposes of the private class litigation model and the public interest class litigation model are mainly reflected in the following aspects: First, in terms of agency rights, the former is express authorization, while the latter is implicit authorization or Legislative authorization (group actions, etc.); secondly, in terms of litigation rights, the former is express authorization, while the latter is implicit authorization or legislative authorization (group actions, etc.). ); Second, in terms of res judicata, the former’s judgment is only binding on those who are expressly authorized to sue or be sued, while the latter’s judgment is binding on those who have not explicitly withdrawn from the group or the scope of binding directly stipulated by the law; third, The judgments of the former are binding only on persons expressly authorized to sue or be sued, while the judgments of the latter are binding on groups that have not withdrawn from the group or the scope of binding provided by law. Third, in terms of litigation incentives, the former has no incentives for representatives, while the latter has many incentives for representatives to sue, such as courts, lawyers or prepaid litigation fees, attorney fees, and even bonuses; fourth, from the distribution of property after winning the lawsuit Judging from the above, the former is for the purpose of sharing the winning property, while the latter is for the main purpose of making the other party spit out the illegal gains and not dare to commit the crime again after being sanctioned; fifthly, from the calculation of damages, the main purpose of the law is to make the other party pay compensation. . Fifth, the amount of damages is calculated. The former is calculated based on all the infringements of the party being sued expressly, while the latter is calculated based on all the illegal gains or all the infringements of the offender, unless one of the injured parties expressly withdraws from the partnership.
Class litigation in the United States and Quebec, Canada is a typical public interest class litigation model. Representative litigation in the United Kingdom, Australia and other Commonwealth countries, representative litigation in my country, and the selected party system in Japan and Taiwan all belong to the private interest group litigation model. Group litigation in Germany, France, Thailand and other countries and public litigation in the United Kingdom use special legislation to carry out interest litigation, which often requires the use of administrative power. Its essence is not a class action, but it is a way to resolve group disputes. Therefore, It can also be classified as a public interest group litigation model. Some scholars believe that it is a model between the two: personal interests and public interests in group litigation, and a means of litigation to realize the interests of others. In other words, it is a group litigation on behalf of the interests of others. The operation process, rather than the litigation actions carried out by individuals for their own interests as in the general litigation process[3].
(2) Private interest group litigation model
The group litigation system first emerged in the United Kingdom and was later introduced to the United States. Some scholars believe that the class action system in the United States began with Article 23 of the U.S. Federal Code of Civil Procedure, which was implemented on September 1, 1938[4]; the 1848 Field Code of Civil Procedure of New York State was the first to implement representative litigation. Legal documents[5]. However, some scholars believe that the equitable class action system created by the Field Code has been affirmed. In 1853, the U.S. Supreme Court publicly ruled on a class action case for the first time - Smith v. Swarthout. At this point, the class action system was formally established in the United States [6]. The development of class actions in the United States can be roughly divided into two stages: the first stage from the 19th century to the 1960s; the second stage from the 1960s to the present. The first stage is the lower stage of the emergence and development of class actions, and the second stage is the advanced stage of increasingly perfect structures. Since the United States is a typical case law, the division of stages according to codes is not accurate and can only be used as a reference. In the common law period, class actions were proceedings conducted by the Court of Chancery when there were too many parties and all members could not be litigants. In the code period, there were also provisions for class actions, but at that time they were only used as part of the consolidation of litigation. species, the regulations are also very simple. The original provisions of the Federal Rules of Civil Procedure were also very simple. Only when the class members were so large that it was practically impossible to make all members parties, a class action was allowed to be recognized, and the person who became the representative party must ensure that the party was fairly represented. Represent the interests of all parties involved. However, this provision does not provide the same relief for *** class action type lawsuits as consumer lawsuits. Although consumer lawsuits are considered class actions, they are not a new type of *** class action lawsuits.
In countries with civil law systems, the traditional concept of litigant individualism can be traced back to Roman law, such as the legal proverbs: "No litigation without interests" and "No litigation without an agent." In the common law system, historical common law courts also opposed party representation. Judgments can only involve those who actively seek judgment and have a direct interest in the judgment, and are not binding on non-participating subjects. However, in equity, if The "necessary parties" are a large number of independent individuals who have an indivisible legal interest. However, under the law of equity, if the "necessary parties" are a large number of independent individuals who have an indivisible *** interest , but all litigants cannot litigate together. If it is necessary to litigate together, the problem can be solved through group litigation, allowing one member or a few members of the group to litigate on behalf of all members of the group. litigation. However, influenced by the concept of due process, in the early equity practice, neither the Foreign Code nor the Federal Rules of Civil Procedure clearly stipulated that litigation judgments were binding on group members who did not appear in court, and the judgment was res judicata. It does not actively extend to those who have not explicitly sued, regardless of whether they are unwilling to sue, and regardless of whether they sue on behalf of all group members due to the characteristics of "rotten rights". The characteristics of "perishable rights" make it uneconomical for them to sue. This also does not take into account whether the offender has been punished as he should, so that he does not dare to infringe other unspecified people again. It can be seen that the purpose of the class action at this time is to On the basis of due process, based on the "litigation trust" theory, the private rights and interests of group members who are expressly authorized to represent the parties in litigation are protected.
Japan's party selection system is also a private group litigation model, and its purpose is also to protect the private rights and interests of group members who are expressly authorized to represent the parties in litigation. Protect personal interests. The application of the party selection system should have the following elements: First, there must be a majority of parties with the same interests. Second, unincorporated groups without representatives or managers must not choose parties. One or more persons with the same interests should select one or more persons as the plaintiff or defendant. Therefore, the right to enforce the action belongs to the selected party, but the right to enforce the action originates from the will of all parties. and interests are reflected in the litigation procedures through the substitution of the selected parties in the litigation. The system of selecting parties is more universal in the same litigation, thus taking into account the coordination with the original theoretical system of civil litigation. The selection of the parties to the claim for damages depends on the specific victim and the specific content of the right. As for the claim for omission, it is often not allowed because there is no basis in substantive law, especially the omission for the purpose of preventing infringement. It is very difficult to file a claim. Japanese scholar Akihiro Kamibayashi believes that Japan's party selection system has not yet shifted from protecting individual interests to "group interest litigation" that protects general interests. This is also the case in civil law countries because they are too excessive. Pay attention to the traditional theory of right of action and the theory of res judicata
(3) Public interest group litigation model
In 1966, the United States comprehensively revised Article 23 of the United States Federal Rules of Civil Procedure regarding class actions. regulations [8]. Thus, the purpose of class action lawsuits in the United States has evolved from protecting personal interests to protecting social interests. When talking about class actions, Posner said: Suppose toothbrush manufacturers collude to implement price monopoly, which benefits the interests of millions of consumers. The cumulative costs of harm to each consumer may be as large as pennies, and if all of these claims were aggregated into a class action, the subject matter of the class action would be sufficient to cover the costs of litigation. From an economic perspective, the most important thing is to make the offender bear the cost of the violation - which achieves the distributive purpose of litigation - rather than requiring him to pay damages to the victim, because the actual cost for group members to obtain compensation may be extremely high. The deterrent benefits of litigation may in some cases be outweighed by being insufficient to induce any victim to bear any costs of obtaining legal relief[9].
Taiwanese scholars have also discussed that class actions allow originally trivial compensation claims to be aggregated into huge compensation payments, allowing most victims to fight against the infringement of large companies and obtain considerable compensation, no longer being excluded from the court, and tolerating rights holders. Raising the opinion of corruption is also the essence of "calculation of the amount claimed" and "cost-effectiveness of litigation" in class actions [10].
Since the victims’ losses are usually small, they are generally indifferent to prosecution. Even if they win the lawsuit, they will not get their due share because the losses are outweighed. Therefore, in order to achieve the purpose of protecting social interests by sanctioning the offenders , we have to pay attention to the improvement of supervision and incentive mechanisms in terms of litigation costs, lawyer fees, reward mechanisms, burden of proof, judicial intervention, etc., so that the class action system can operate effectively. In recent years, the system has continued to operate, although there are still some unresolved issues. In recent years, although there are still some unresolved problems, the improvement of the incentive mechanism and supervision mechanism has basically enabled the system to operate effectively. In the United States, to incentivize individuals to seek judicial relief to obtain double and treble damages, Congress in some 70 federal laws has given courts the power to award attorney fees to prevailing plaintiffs, to be paid by the losing party. Doctrine ordering defendants to pay the prevailing plaintiff's attorneys' fees even when there is a lack of legal basis [11] (p. 70-74). A more flexible approach has also been adopted to reduce costs in terms of notification methods and distribution of property in favor of the plaintiff. In terms of supervision mechanism, it includes internal supervision and external supervision. Internal supervision means that the victim, as a group member, supervises the litigation behavior of the agent suing on behalf of the group. External supervision refers to the "judicial initiative" of courts to intervene in group litigation ex officio. This includes deciding whether to authorize a group lawsuit, conducting a preliminary review of the group lawsuit to determine whether the group is likely to win, supervising the litigation behavior of the representative, supervising the distribution of property after the group wins the lawsuit, etc.
The above analysis shows that the current purpose of class action lawsuits in the United States is no longer just to protect the private rights and interests of victims who are explicitly sued, but also to protect social and public rights, and actively expand the power of res judicata to all persons who have not explicitly withdrawn. members of the group. The background of class action litigation in the United States is traditional idealism and pragmatism. Its essence is to use the interest motives of individuals and their attorneys to achieve certain public purposes or public policies. The basis of this system is not so much to relieve the infringed rights and recover losses, but to make the infringer spit out the illegally obtained benefits and not dare to commit the crime again [12] (P.192). In other words, its primary task is not to use class actions to recover compensation from victims, but to rely on the court's injunction writs or declaratory judgments to influence and change public anti-corruption policies, punish offenders, and protect social and public anti-corruption interests.