论群体诉讼在环境公害领域的应用

On the Application of Class Action in the Field of Social Effects of Pollution

在环境公害领域,群体诉讼是解决环境公害纠纷、保护环境权最重要的法律手段。然而,我国的群体诉讼模式却正遭遇"搭便车"问题的困扰。其原因在于,我国的代表人诉讼判决对未登记参与诉讼的权利人具有间接的扩展效力,这样一来,如果某些权利人不愿为参与诉讼而付出成本,他可以在其他人发动诉讼并胜诉后再行起诉,以便获得法院关于适用原判决的裁定。如果所有人都采取这一行为方式,结果是谁也无法免费搭别人的便车。对此,可以考虑判令环境侵权人向参与代表人诉讼的原告支付惩罚性赔偿,而对"搭便车"的权利人则仅进行普通损害赔偿,以此来激励权利人积极参与代表人诉讼,从而解决"搭便车"问题。

In the field of social effect of pollution, class action is the most important legal means to settle environment dispute and protect environment rights. However, in China, the class action mode is being bothered by ＂hitchhike＂ problem, simply because the judgment of representative action can bring indirect expanding effect on people who have not registered to participate in the action. Therefore, if people are not willing to pay for the action, they can go to court after the pre - plaintiff has won the battie. If all people are taking this strategy, the result is that no one can get a free ride along the road. Withal, we can try to make castigatory compensation to the plaintiffs who have thrown themselves into representative action, and make common compensation to ＂hitchhikers＂. By this way, we can inspire the parties to take the lead in lodging a complaint, and to solve the ＂hitchhike＂ problem.