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SUFE School of Law held Symposium on "The Public Interest Litigation in the Protection of the Rights and Interests of Consumers"

 

By Translator Hu Ran, March 21st, 2018

 

In the time of that thirty-sixth World Consumer Rights Day is coming, in the afternoon of March 13, hosted by Research Association for Consumer Rights and Interests Protection Law of Shanghai Law Society, together with Shanghai University of Finance and Economics School of Law, the Symposium on " The Public Interest Litigation in the Protection of the Rights and Interests of Consumers " was held ceremoniously in School of Law Lecture Hall. This symposium took “The Public Interest Litigation in the Protection of the Rights and Interests of Consumers” as its theme and mainly set up two theme discussion panels from the aspects of civil procedure and administrative procedure.

 

 

 

Prof. Zheng Shaohua, President of Research Association for Consumer Rights and Interests Protection Law of Shanghai Law Society and Assistant to the President of Shanghai University of Finance and Economics, Xu Lanbo, Vice President of Research Association for Consumer Rights and Interests Protection Law of Shanghai Law Society,  research fellow of Shanghai Academy of Social Sciences Research Institute of Law and Editor of Politics and Law, East China University of Political Science and Law International Law School Prof. Liu Ningyuan, Vice President of Research Association for Consumer Rights and Interests Protection Law of Shanghai Law Society, Wang Qiong, Director of Notarization Management Office of Shanghai Bureau of Justice, Sun Bin, Chief Judge of Immediate Judgment Collegial Panel of Shanghai No.2 Intermediate People's Court, Chen Jielei, Vice Director of Shanghai Municipal Bureau of Quality and Technical Supervision Complain and Offence Reporting Centre, East China University of Political Science and Law Prof. Ren Chao, Wang Jian, Assistant Director of Shanghai Law Society Research Department, Prof. Zhou Jiepu, Secretary of CPC Committee of Shanghai University of Finance and Economics School of Law and Secretary-General of Research Association for Consumer Rights and Interests Protection Law of Shanghai Law Society, Prof. Song Xiaoyan, Acting Vice Dean of Shanghai University of Finance and Economics School of Law, Vice Prof. Xu Jian, Assistant to the Dean of Shanghai University of Finance and Economics School of Law, Shanghai University of Finance and Economics School of Law Prof. Liu Shuilin and Prof. Wang Fuhua attended the symposium. Graduate students from Shanghai University of Finance and Economics School of Law and others participants sat in on the symposium.

 

 

 

The opening ceremony was chaired by Prof. Zhou Jiepu. She also introduced the attendees.

 

 

 

Prof. Zheng Shaohua made a speech on the opening ceremony. He said that it’s usual practice to hold symposium before World Consumer Rights Day for Research Association for Consumer Rights and Interests Protection Law of Shanghai Law Society. Recently, the biggest change related to the relevant laws that protect the rights and interests of consumers is the design of public interest litigation system. Since the new system made major changes to the subject qualification of the parties concerned with public interest litigation, it’s significant to take "The Public Interest Litigation in the Protection of the Rights and Interests of Consumers" as the theme of this symposium. The symposium mainly set up two theme discussion panels from the aspects of civil procedure and administrative procedure with the Chinese characteristics. On behalf of Shanghai University of Finance and Economics and Research Association, Prof. Zheng Shaohua expressed warm welcome and thanks to the scholars and guests.

 

 

 

On behalf of Shanghai University of Finance and Economics School of Law, Prof. Song Xiaoyan, Acting Vice Dean of Shanghai University of Finance and Economics School of Law made a speech. She expressed thanks to Research Association for Consumer Rights and Interests Protection Law of Shanghai Law Society for entrusting the important symposium to Shanghai University of Finance and Economics School of Law. At the same time, she hoped that there would be more similar opportunities in the future. She proposed that the protection of the rights and interests of consumers could be carried out from three aspects, such as the perfection of laws and regulations, the sound of enterprise credit, and the enhancement of the consciousness of consumer-safeguarding-rights. Recently, the white paper published by Shanghai No.1 Intermediate People's Court has disclosed relevant data on consumer litigation. Though the data, it’s easy to find that the consciousness of consumer-safeguarding-rights is constantly strengthening, the number of consumer litigation has increased and the courts have a high support rate for false on compensate ten and false on compensate three. And on the basis of traditional consumer contract litigation cases, there are new types of litigation cases, such as online shopping contracts litigation cases, service contracts litigation cases and so on. Prof. Song Xiaoyan also pointed out that financial consumer protection is a hot topic which has had a huge development in foreign countries. At present, the regulatory departments of various financial sectors are also pushing ahead the financial consumer protection, so she hoped that in the future, we will be able to include the issue of financial consumer protection in the topics of consumer law research. In the end, she welcomed the guests again and wished the meeting a complete success.

 

The first panel was chaired by Xu Lanbo, Vice President.  Prof. Wang Fuhua made a report with the theme of “The New Development of Civil Consumption Public Interest litigation”. Then, Sun Bin, Chief Judge, and Prof. Ren Chao expressed their points of view.

 

 

 

In his report, Prof. Wang Fuhua reviewed the legislative and judicial trends of civil consumption public interest litigation and analyzed deeply from the requirements of prosecution, the plaintiff qualified, the type of claim and procedural rules. About the requirements of prosecution, Prof. Wang Fuhua said that the threshold of public interest litigation should be higher than private interest litigation. The reason is that public interest litigation should keep the modesty. As the supplement to administrative law enforcement, public interest litigation should play the role of policy making and policy implementation. Therefore, in American law, the plaintiff must provide sufficient facts to explain the reasonableness of his remedies claim. The Article 284 of <Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China> requires preliminary evidence for litigation that public interests are harmed. About the type of claim, Prof. Wang Fuhua thought there are mainly two types, one is inaction litigation and other is damage litigation. The first type is prophylactic, which could be seen from the group legal action of the civil law countries, and the plaintiff can only start a request for inaction at the beginning. But, civil law countries are also turning to litigation for damages, because if it is only preventive compensation, the law is a tiger without teeth and no deterrent force. Then, Prof. Wang Fuhua carried out a more detailed discussion on whether the system of compensation for damages in China should be established and the problem of the system to deal with. About the procedural rules, Prof. Wang Fuhua mentioned the application of disposition principle. Since the public interest litigation play 

the role of policy making and policy implementation to some extent, some rules should be specific. Once public interest litigation is brought up by the organizations or departments, it is not allowed to conciliate or blend in private with the defendant, and this disposition should be restricted and supervised.

 

 

 

Sun Bin, Chief Judge, reviewed eight typical cases from 2004 to 2017, analyzed and summarized the judicial exploration process of Shanghai court system in the field of consumption public interest litigation. He thought that there is little research about the scope of accepting cases, the type of claim, the burden of litigation costs, the distribution of evidential burden and other fields in Shanghai court system. Therefore, in specific practice, there is no measure to deal with there problems. Actually, consumers carried the flag of consumption public interest litigation before 2014. Finally, he pointed out that the judicial practice is the fundamental motive force of the theory development and hoped the theorists would pay much attention to judicial practice.

 

 

 

Prof. Ren Chao said: as Prof. Wang Fuhua mentioned in his report, basically, all of the existing cases of consumption public interest litigation are prohibition. It is also particularly easy for courts to make such a decision, because it has no cost, just as the media has declared. But, he thought a very important task that consumption public interest litigation would face in the future is how to build the system of suit for damages. Then, Prof. Ren Chao introduced the system of civil litigation for the recovery of property damage of group consumers in Japanese law and pointed out the important implications to our legislation.

 

 

 

Xu Lanbo, Vice President, also expressed his views and perspectives. He proposed that “public interest” in Prof. Wang Fuhua’s report contains two kinds of meaning. The first level refers to the interest with diffusivity, which involves the uncertain majority. The other refers to the interest of aggregation whose protection is carried out by class action. Through the provisions of law and the relevant judicial interpretations, it is not difficult to find that "public interest" in our public interest litigation refers to the open and diffusing interests. The question that the difficulty to allocate compensation brought by suit for damage could be solved by directing foundations to manage the compensation including using for making up for the damage to the public interest.

 

The second panel was chaired by Liu Ningyuan, Vice President. Vice Prof. Xu Jian made a report with the theme of “Public Interest Litigation in the Protection of the Rights and Interests of Consumers -- the Perspective of Administrative Litigation”. Then, Prof. Liu Shuilin and Chen Jielei, Vice Director, expressed their points of view.

 

 

 

Vice Prof. Xu Jian pointed out that the positioning of consumption public interest litigation is generally carried out under the framework of civil litigation. It is difficult to put public interest litigation into a civil or administrative or other type of litigation to make a fixed discussion. This is because on the one hand, the disputes in consumption public interest litigation is actually civil disputes from the perspective of consumer protection law; on the other hand, the provisions of the civil procedure law and consumer protection law show the civil characteristics of the consumption public interest litigation, especially the provision of chapter sixth in consumer rights and interests protection law provides the solution to disputes. The last part of this chapter is the public interest litigation. However, considering the structure, administrative litigation is not involved. Therefore, from the framework of the whole, consumer rights and interests protection law do not arrange things from the aspect of administrative litigation. But why do we have to discuss the consumption public interest litigation from the perspective of administrative litigation? There are two main reasons: firstly, in modern society, people form dependence on administration. When consumers feel that their rights and interests have been damaged by operators, they are more likely to choose the administrative processing, such as complaints to the market supervision departments. Secondly, for supervision departments, there is situation of damage to the rights and interests of the consumers due to negligence or administrative omission in the process of performing the duties of the government. Subsequently, Vice Prof. Xu Jian analyzed comprehensively the extent of actual damage, the impact of administrative measures on national life, and the relevance between prosecutors' status and administrative measures. He stressed the need to solve the problem of public nature in a particular field in modern society through a special system.

 

 

 

Then, Prof. Liu Shuilin expressed his view that the function orientation of consumption public interest litigation is misplaced at present. If we firstly locate public interest litigation as civil public interest litigation or administrative public interest litigation, it is negative for the own function orientation of public interest litigation. Prof. Liu Shuilin said that public interest litigation has its unique characteristics, neither civil or administrative. He pointed out that the function orientation of public interest litigation is still explained through mainstream legal value theory in the field of law, which is not appropriate. The mainstream legal theory is to protect the rights of individuals and to bring suits after individual rights were damaged, such as infringement and breach of contract. But from the perspective of economic law, such as antitrust law and environment law, these laws protect the order itself, not the specific rights. Order is a kind of public goods and the damage to order is public. Only when the damage of order happened, the public interest litigation could be brought. The standard of the public and the private is not the number of people. The different between the public and the private is uncertainty. In other words, the damage should have impact on everyone, and all can not be spare. For example, after environmental pollution, everyone's interests are damaged, not only the present people, but also the future generations. For example, from the aspect of antitrust law, the monopolistic act damages the competition order, and the antitrust law protects the competition order rather than the competitors. Considering consumer rights and interests protection law from the perspective of economic law, the law is to protect the fair trading order rather than the consumers as well.

 

 

 

Chen Jielei, Vice Director, talked that he fully agreed with the point that the public interest litigation system is an effective supplement to the administrative departments for protecting public interests and is miscellaneous institution arrangement. From the current practice of market supervision, consumers take the biggest line of administrative resources through complaint reporting. So as Prof. Wang Fuhua said before, it is necessary to let public interest litigation become a complement to administrative law enforcement and make it play the role of policy formulation and policy implementation.

 

 

 

Prof. Liu Ningyuan gave his view from the perspective of administrative litigation. He believed that the relevant legal norms are not clear. But in practice, there are still much administrative litigation for consumers, but this kind of litigation does not have the typical public welfare. Only because the consumers have formed a kind of dependence on administration, and in the administrative litigation, the consumers enioy the public welfare.

 

 

 

The closing ceremony was presided over by Director. Wang Qiong. Prof. Zheng Shaohua responded to the views of Prof. Liu Shuilin and other scholars. Firstly, the question of function orientation of consumption public interest litigation is question to find the theoretical basis and legal basis of public interest litigation. Just like that only the failure of Administrative supervision, administrative regulation and administrative law enforcement will bring administrative litigation. Secondly, General Secretary. Xi stressed that the major reform should be based on the law. The start of Chinese public interest litigation experienced a long history. Strictly speaking, Chinese public interest litigation could be traced back to the last century in 90s. Although it was private then, but still had public factors. The process of Chinese legal system is gradual and we make experiments all the way. It is one characteristic of Chinese public interest litigation. Another characteristic is that local legislation is earlier than national legislation. Even the formulation of judicial interpretation is earlier than national legislation, etc. The characteristics of this process is worth studying. To some extent, the private interest litigation plays the role of public interest litigation in this process. Thirdly, since the modern age, in politics and law, the administrative department naturally have element that represents the public interest. One of the questions we have to answer here is the boundary of public interest litigation. In fact, there should be three aspects of the boundary of public interest litigation. One is to draw a demarcation line with private interest litigation. Two is to be clearly distinguished from administrative law enforcements. Three is to keep the balance of interest. 

 

In summary speech, Prof. Zheng Shaohua said that Chinese public interest litigation is facing with amendments. Firstly, Chinese public interest litigation is sometimes intertwined with public and private issues. For example, it is hard to strictly definite Chinese class representative action and American group action are public or private. They are blurred and regarded as one kind of litigation. The typical group action in Germany does not have the right to claim compensation for infringement. The mode of group action, including class action and public interest litigation, all have been applied in practice in law. If not, it is not enough when only public interest litigation is applied. Therefore, group litigation, class action and public interest litigation should be taken together. Secondly, he do not quite agree with the distinction between administrative public interest litigation and civil public interest litigation. When studying this topic or designing the system, it is necessary to consider administrative and civil public interest litigation together. Thirdly, the discussion about the appropriate appeal body of public interest litigation is scalable. Particularly, the citizen should be the plaintiff of the public interest litigation, which has a great advantage to facilitate the development of citizen character. From the perspective of theoretic basis, the qualifications exit. Of course, when the appropriate appeal body of public interest litigation extends from citizen to natural person, it is still question of theoretic basis, such as the distinction between citizen and burgher. In fact, private litigation is a lawsuit brought about by a natural person in the identity of a citizen, which is considered for its own interests. When he took part in a lawsuit as a citizen, it was a public interest litigation. So the so-called public interest litigation in the United States is actually a civil lawsuit. 

 

In the end, Prof. Zheng Shaohua expressed his thanks again for the participation of all the guests and students.

 

The symposium talk ended in a satisfactory way.

 

Original News: (http://law.shufe.edu.cn/show.aspx?info_lb=12&flag=12&info_id=3764)

Published:2018-03-21 Hit:99
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