民事诉讼代表人制度中诉讼当事人制度论

Reconstruction of System of the Litigants in Representative Action

我国现有的民事诉讼代表人制度中,将人数众多一方中的每个成员均视作诉讼当事人,但只将诉讼权利义务赋予代表人,被代表的当事人却无进行诉讼的权利和义务。这样的制度安排看似符合群体诉讼的特性要求,但却与民事诉讼制度原理相悖。考察相关国家的制度安排,发现我国现有代表人制度中的诉讼当事人确定既阻碍了诉讼当事人平等原则的贯彻,又不能使代表人充分进行诉讼,从而成为该制度不能被广泛适用的先天缺陷之一。因此,作为解决群体纠纷的诉讼机制,代表人制度中诉讼当事人的选择,既要满足群体诉讼的特殊要求,又应契合民事诉讼当事人制度原理的运行机制。

In China’s system of representative action,all the members of the party are viewed as litigants of the process.But only the representatives have the procedural rights,those people who are represented do not have the rights and obligations to practice during the procedure.This institutional arrangement appeared to satisfy the characteristics of group action,however,is indeed contrary to the principles of civil procedure system and different from the systems of other related countries.This unique system not only obstacles the implement of the principle of equality,but also hinders the representative to fully perform during the procedure of litigation.The design of representative action system thereby cannot be widely used and become one of the defects of this procedure.As a mechanism of resolving group disputes,how to chose the proper litigants of the process is the key of representative action.We have to consider the special requirements of group action and the operating mechanism of system of litigants in civil procedure.