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Reflection on the Independent Construction of “Consumer Public Interest” in China |
DUAN Housheng |
School of Law, Fudan University, Shanghai |
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Abstract: The consumer public interest litigation in China is conditional on the infringement of the private interests of many consumers. From the normative expression and logic of Article 58 of the Civil Procedure Law and Article 47 of the Consumer Rights Protection Law, we see that consumer public interest is actually parasitic among consumer private interests. The Supreme People's Court distinguishes between consumer public interest and consumer private interest in relevant interpretations, which leads to a dilemma of abstraction and emptiness of the concept of consumer public interest, so that the claims for specific cause of action of consumer public interest litigation in individual cases can only be concretized by virtue of the norms of consumer private interest relief, which result in the overlap of consumer public interest litigation and consumer private interest litigation in claims. The rational approach to solving the problem is to restore consumer public interest to the collective private interests of many consumers, to refer to the opt-out mechanism of group litigation, and to construct the existing consumer public interest litigation procedures according to the principle of legal litigation responsibility. At the same time, the law should cover the scope of consumer public interest litigation to include consumer representative litigation within the scope of consumer public interest litigation. Furthermore, we should explore public interest recognition litigation and public interest demonstration litigation in the consumption field.
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Received: 20 February 2023
Published: 15 May 2023
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[1] |
罗书臻.积极稳妥推进消费民事公益诉讼构建和谐公平诚信消费市场秩序——最高人民法院民一庭负责人就消费民事公益诉讼司法解释答记者问[N]//.杜万华.最高人民法院消费民事公益诉讼司法解释理解与适用.北京:人民法院出版社,2016:9-18.
|
[2] |
杜万华.最高人民法院消费民事公益诉讼司法解释理解与适用[M].北京:人民法院出版社,2016:43-46.
|
[3] |
汤维建.检察公益诉讼实施模式研究[J].学术交流,2023(2):25-42.
|
[4] |
全国人大常委会法制工作委员会民法室.民事诉讼法修改决定条文释义[M].北京:中国法制出版社,2012:46-56.
|
[5] |
黄忠顺.惩罚性赔偿消费公益诉讼研究[J].中国法学,2020(1):260-282.
|
[6] |
颜卉.消费公益诉讼惩罚赔偿金归属研究[J].兰州大学学报(社会科学版),2020(3):76-83.
|
[7] |
杜乐其.消费公益诉讼惩罚性赔偿解释论[J].南京大学学报(哲学·人文科学·社会科学版),2022(1):119-136+160.
|
[8] |
刘学在,尹思媛.消费民事公益诉讼:实践困境与突破路径[J].广西社会科学,2022(11):98-108.
|
[9] |
肖建国.民事公益诉讼的基本模式研究[J].中国法学,2007(5):129-146.
|
|
|
|