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The class action system in the United States

2019-01-19 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- The class action system in the United States,供大家参考学习,这篇论文讨论了美国的集团诉讼制度。19世纪集团诉讼跨越了大西洋进入了美国,从此集团诉讼在美国得到了长足的发展。从1842年到1912年,联邦法院的集团诉讼一直受联邦《衡平法规则》第48条的调整。到了1938年,《联邦民事诉讼规则》出台,该规则取消了普通法与衡平法的区别,并在第23条对集团诉讼做出了规定。但由于该规则对集团诉讼缺乏系统严谨的规定,尤其没有规范集团诉讼的具体程序,因此,美国在1966年对《联邦民事诉讼规则》中的集团诉讼的规定进行了重大的修改,使集团诉讼进入了比较成熟的阶段并在美国得到了广泛的运用。

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As for the class action, the arguments within American courts, between public departments and among scholars are extremely fierce. It promotes the public interest and saves the litigation cost, but at the same time, it also causes many problems. In China, almost all the researchers have mentioned the value and the superiority of American class action, and put forward the assumption of the introduction of this system. Based on the historical evolution of class action in the United States, this paper analyzes the litigation benefits and legitimacy of this system, and at the same time studies the disadvantages of class action in the United States, to discuss the difficulties and solutions faced by China in the introduction of this system, so as to promote the development of group action in China.

Class actions are generally believed to have begun in the English courts of chancery in the late 17th and early 18th centuries. In the 17th century, the chief justice of the court of chancery by "complaint" developed on behalf of the lawsuit system, which allows a common interests of many parties constitute temporary suit group, by one person or several people represent the common interests of other people filed a lawsuit, and the lawsuit on behalf of others can be not to be named, the effectiveness of the decision of the court and in the interests of common people. This kind of representative action can be said to be the predecessor of today's class action. Class action has the following characteristics: the first is the existence of the group of fiction. A large number of people to become a group is due to the technical consideration of the proceedings, it does not have the civil subject qualification, its litigation rights capacity since the representative in the name of the group when the lawsuit is recognized by the court, and will automatically disappear with the end of the proceedings, the representative and unlimited. Secondly, the indirect realization of group members' interests. A class action is one in which the representative exercises the litigation rights on behalf of the group members. Other members of the group cannot participate in the litigation directly, but participate in the litigation indirectly. The final judgment made by the court is valid for all group members. A direct expansion of the effect of a judgment, which is equally binding on those represented members who do not participate in proceedings and those members of a group who are not specifically authorized to represent them. Sentence this expansion drive, natural properties with certain groups, generally the plaintiff does not need to take part in the trial, does not need to pay legal fees, do not need to hire lawyers, the collective action, anyhow don't even have to know what happened but can the restraint of judgment, to enjoy the benefits of judgment, to establish a good social order is better than executive orders.

In the 19th century, class action crossed the Atlantic ocean and entered the United States. Class actions in federal courts were regulated by section 48 of the federal rules of equity from 1842 to 1912. The rules, if any party of a litigant Numbers so that all can't appear in court to participate in litigation, the court may decide to by some party on behalf of all the interests of the parties have common or similar filed a lawsuit, but litigation results for those with a similar situation of the absence of the parties without engagement. In order to obtain a final judgment on the question raised, the court often overlooks the provisions of article 48 of the rules of equity and declares that the judgment is binding on all members of the group. Rule 38 of the 1912 rules of equity supersedes rule 48 of 1848. It stipulates that if the problem involved is an issue of common or universal interests to many people who constitute a class action, and the number of people who constitute a class action is so large that one or more people in a class action can Sue or answer on behalf of all if it is not practical to have all of them appear in court. But the effect of the rule on class action is still vague and uncertain. The federal rules of civil procedure, introduced in 1938, eliminated the distinction between common law and equity and provided for class action in section 23. Due to the lack of group litigation system strict regulations, especially the practical program of group litigation without norms, and as a result, the United States in 1966, the group litigation in the federal civil procedure rules made major changes in the rules make the group entered the mature stage of litigation and has been widely used in the United States.

The so-called litigation efficiency refers to the litigation cost and proceeds from the proportion of the relationship, with the least litigation cost input, to obtain the maximum benefits. Litigation costs the least, refers to the lawsuit system designers can be obtained directly on the goal of every available for the implementation of the different amount of the cost of litigation activity, choose the best one of the most effective litigation costs, make the litigation is the most effective utilization of resources, and don't make litigation costs, especially the direct costs of the inputs are insufficient or surplus. The federal court of the United States has emphasized that one of the reasons for the development of the modern class action is that it has the effect of dispersing the costs of litigation among a large number of similar litigation claims, and can significantly reduce the costs of litigation, especially attorney fees, which are distributed among all winners and losers.

The traditional individual litigation is faced with the dilemma of repeated costs in judging the same kind of problems in dealing with group litigation disputes. The litigation cost of some small compensation cases is out of proportion to the amount of claim, which makes it not worth the parties to file the compensation lawsuit alone. However, the class action system in the United States has removed the obstacles to the access of social members to the judicial system and effectively relieved their rights. Supporters of class action argue that it is more efficient for the legal system to allow class action rather than expending energy on a large number of individual actions. By putting a merger case under one outcome, class actions ensure greater consistency in the outcome of similar cases. Consistency also increases the legitimacy of the legal system. Moreover, by allowing individual requests to be grouped together, those that cannot be brought individually because of cost or inconvenience have a chance of being brought. By allowing common grievances to be consolidated, heard, and potentially claimed, class actions provide access to the courts for hundreds of thousands of people who cannot afford to litigate alone. American group litigation reduces the litigation cost by incorporating common issues into the same litigation procedure. Group litigation members can solve the same or similar cases together to avoid the diversity of behaviors, thus achieving higher social management efficiency. Secondly, in the case of illegal ACTS have been proved, timely provide people with effective relief; Moreover, it saves the court a great deal of energy by extending the effect of the judgment directly to those members who have not explicitly withdrawn from the group, and by safeguarding to the greatest extent the rights of those who have the same interests as the litigant representatives.

But this contradicts practice. In practice, class action is not beneficial under any circumstances. Class action is a huge lawsuit, which will consume a lot of manpower and material resources and greatly increase the difficulty of trial work. Compared with a single lawsuit, it is not realistic to give a trial result as soon as possible. In America, class actions, even if settled, take at least a year. Moreover, due to the extension of the trial cycle, the increase of trial difficulty and the reduction or loss of the opportunity for the parties to participate in the trial, the amount of the parties' compensation will be affected. In terms of the specific operation of American class action, the effectiveness of large-scale class action itself has been questioned by the society. Third, the legitimacy analysis of American class action

The meaning of "just" in modern Chinese is "reasonable and legal". Only reasonable, legal things have the right attributes, only the right behavior and its results can be accepted by people. Japanese scholar yasuhei taniguchi once said, "when people accept the result of the exercise of rights as a legitimate thing, the exercise of such rights and the result can be called with 'legitimacy' or 'legitimacy'. A system of rights or exercise of rights that lacks legitimacy or has lost it cannot be sustained for long. Therefore, we can define the legitimacy of American class action as the nature or effect that the action and its result are accepted or recognized by the parties or the general people in the society as a whole.

As the product of equity law, American class action originates from the need of practice. Its purpose is to provide effective protection for numerous parties with common interests in the most economical and efficient way. The legitimacy of American class action means the legitimacy in form and in essence. From the perspective of federal civil litigation, to form a class action, first of all, the number of groups should be large; Secondly, the group has common legal or factual issues; Moreover, the claim or defense of the litigation representative is representative in the group; Finally, representatives can fairly and fully safeguard the interests of group members. Among them, the litigation representative is the key figure of the group action, without the litigation representative, the group action can not be filed, determine the litigation representative of the group action is the form of the group action can be carried out, only one or more people on behalf of the common interests of other people to file a lawsuit, but also to ensure the interests of other members. The difference between American class-action litigation and ordinary civil litigation is that the parties cannot implement the complete confrontation system in the process of trial, and the whole procedure is more controlled by the judge, who also conducts substantive review to ensure the legitimacy of the substance. Only when formal legitimacy is satisfied can the legitimacy of substantial results be guaranteed. Therefore, we should attach importance to the legitimacy of form. The famous American judge frank once said that justice must be not only fair in essence, but also fair in appearance. At this point, the legitimacy of the formal and substantive results is the effect of the acceptance by the parties concerned or the general public in the society. American class-action makes great contribution to American civil litigation, which not only solves the problem of the legitimacy of class-action, but also solves the problem of the fairness of class-action.

The value and role of class action in the United States are obvious to all, but the problems and disputes arising from class action in the United States in recent years are also indisputable facts. From an empirical point of view, in many cases, class action does bring some form of efficiency to the court and the defendant. By combining all claims based on the same set of facts in one suit, class action relieves the court of the pressure to hear duplicate claims. Class-action suits also free defendants from the costs of presenting the same evidence and expert witnesses in successive, repeated lawsuits. Also, because there is no clear exit all group members should be restricted because of a final judgment, the group litigation will greatly reduce the possibility of a judgment conflict each other, if the lawsuit is inevitable, it is very important for the defendant, group litigation's judgment to the defendant a psychological comfort, the defendant know they won't meet again in the future based on the same facts of an estimate of the litigation pressure.

Class-action lawsuits have become a way for groups lacking political attention to gain public attention in the United States. For group members and their lawyers filed a lawsuit in the United States is of great advantage, because the American contingent fee system, group action can make a case with a real economic interest value, its lure talented lawyers start litigation, litigation cost ratio is determined according to the damage of the entire group, so the plaintiff group litigation lawyers fees can reach millions of dollars. Due to the induced huge litigation fee return, some lawyers specially focus on some issues there may be potential case, malicious litigation to seek high litigation costs, time and time again to part of the system mess to get the rights of parties involved in the litigation is no longer the parties to maintain the rights of last resort, the first need of obtaining high interest to become a lawyer. People began to re-examine the system to the United States group litigation brought about by the fierce dispute, lawyers to the abuse of class action and win fees entangled, has become a growing concern of the community. In order to limit lawyers' remuneration and change the situation of abuse of class action, the United States congress amended the legal provisions of class action in 1998 and 2003 respectively. In particular, the class action act of 2005 provided that only the first defendant and more than one-third of the plaintiffs were from the same state, and that a class action case with a claim of $5 million or more could be heard in the state courts. If less than one-third of plaintiffs and first responders are in the same state and claim more than $5 million, the case will be heard in federal court.

But, in addition to the group lawsuit abuse problems restricting its operations, there are other problems influencing the full play of the group litigation, probably have a few questions: "the federal civil procedure rules" regulation, for any item under the terms of the 23 group described in the litigation, the court should notice to group members according to the circumstance, including to after reasonable efforts can confirm the identity of all members of the individual test, it will cost a lot of time, manpower and money. Because there are too many parties, each party is not completely consistent in the damage, everyone must have sufficient evidence to prove that it is actually a party, sometimes this proof is very simple, sometimes it is very difficult, also can not be accurate. Different from general civil action, the group litigation is not completely controlled by the parties concerned, but by the height of the court and judicial authority management monitoring, run under the judge in addition to strengthen the control of proceedings, also for substantial examination, and with the increase of group litigation, the federal court's authority is becoming more and more bureaucratic.

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