With the development of economy and society, people are no longer limited to one-to-one relationships. Social relationships have gradually shown the characteristics of one-to-many. At the same time, social disputes have also shown this characteristic. Many social disputes are submitted to the court for judgment, which has resulted in what we usually call class actions. What the author will discuss below is such a class action. The case involved the vital interests of many nutria farmers, and only 146 households registered to participate in the lawsuit.

1. The case

From April 16 to July 30, 1993, the Jiaozuo Grain and Oil Transportation Comprehensive Company Fidelity Breeding Factory advertised several times in the Jiaozuo Daily. The advertisement stated: "The breeding factory is a state-owned enterprise with a registered capital of 300,000 yuan. Jointly operated by Beijing Wildlife Research Institute, it collects a large amount all the year round, sells nutria in large quantities, and signs a three-year recycling contract with farmers. The planting price is 2,500 yuan per pair, and the recycling price is 1,200 yuan per pair. Death insurance and legal notarization are handled." Many people Believe it as it is true, they signed contracts with the breeding factories with advertisements. The contract stipulated: "The breeding factory supplies a pair of nutria to the farmers. The price is 2500 yuan per pair, and there are also 2400 and 2300 per pair. The recovered price will be based on the purchase price of the first year. 50-70%, 40% in the second year, and 30% in the third year. In addition, the contract also specifies specific recycling methods and liability for breach of contract. Since the signing of the contract in 1993, the breeding plant has sold a large number of However, they failed to collect a pair of nutrias in accordance with the contract, causing great economic losses to the farmers. In February 1994, some farmers approached the author for consultation, saying: They saw Jiaozuo City in April 1993. The grain and oil transportation company Fidelity Breeding Factory published a nutria supply and recycling advertisement in Jiaozuo Daily, and signed a nutria breeding and recycling contract with the breeding factory. The contract stipulates that the farmers will be farmed at a price ranging from 2000 to 2500 per pair. The factory purchased breeding rats. After the young rats are born, the breeding factory will recycle 50%, 40%, and 30% of the purchased seed price for three years, and guarantee that the farmers will earn more than 10,000 yuan for three years. Part of the contract has also passed the district notary office. Notarization. In October 1993, the breeding factory suddenly did not know where to go, and the farmers were introduced to the law firm for consultation after the negotiation with the notary office was fruitless. After investigation and evidence collection, the author believes that the breeding factory was signing the nutria breeding recycling contract There is suspicion of fraud. If the fraud is established, this batch of farming recovery contracts should be invalid contracts. The farms should return the money they have obtained for the purchase of rats and bear the responsibility for fault compensation. The Jiaozuo Grain and Oil Transportation Company, as its superior unit, should bear joint and several liabilities. Responsibility. After listening to the author’s analysis, the farmers unanimously agreed to entrust the author to file a lawsuit with the Jiaozuo Intermediate People’s Court.

On March 1, 1994, the author represented the litigation representative and filed an indictment to the Jiaozuo Intermediate People’s Court. Fidelity Breeding Factory and its establishment, Jiaozuo Grain Transportation Comprehensive Company were the co-defendants and demanded compensation for the damage caused to the farmers. Economic losses. On June 3, 1994, the case was heard in the Jiaozuo Intermediate People's Court. In the court debate stage, the author put forward the following agency opinions based on the large amount of evidence obtained by the court investigation: First, first, the defendant breeding factory published the breeding mouse recycling advertisements in various media in Jiaozuo City from April to September 1993. It is false. Many farmers signed contracts with them after being misled and deceived by their false propaganda. Some contracts were also notarized to convince the people of their return on investment. But the fact that cannot be concealed is that the defendant is To achieve the purpose of concluding the contract through deception. According to the provisions of Article 68 of the General Principles of Civil Law Interpretation: “A party deliberately informed the other party of false information, or deliberately concealed the truth, so as to induce the other party to make a wrong expression, which can be regarded as a fraud.” It can be seen that the defendant’s false advertisements It is a fraud. Secondly, the defendant farm did not have the actual ability to perform the contract, let alone the sincerity in performing the contract. According to Article 5 of the Supreme People’s Court’s "Answers to Certain Questions on the Specific Application of the Economic Contract Law in the Trial of Economic Contract Disputes": "The parties to an economic contract shall have free funds and perform the contract in line with their business scope and scale , Ability to assume responsibility. Although some industrial and commercial enterprises have obtained business licenses after being approved and registered by the administrative department for industry and commerce, but knowing that they are not capable of performing contracts, they still sign economic contracts with other units. Their behavior is fraudulent and should be determined as invalid. contract". The defendant’s breeding plant has only 40,000 yuan in funds and no real breeding grounds. However, it often signs contracts of millions of dollars. It has no ability to bear the payment recovery. Obviously, it is the most direct and clearest to sign the contract with the farmers. The purpose is to cheat money, which is obviously a fraud. Finally, the defendant also had other fraudulent acts. The defendant took advantage of the low cultural quality of the farmers and the weak legal concept, and provided many unreasonable harsh terms such as contract termination and three-no reporting system in the format contract provided to the farmers, which was extremely unfair to the farmers. , The defendant’s purpose was to defeat the purpose of reselling by the farmers, thereby concealing its purpose of entering into a contract by fraudulent means. Moreover, when the first batch of breeding rats were about to give birth to young, the defendant was afraid that the contract signed at the time would not be honored, and suddenly moved, and most of the farmers did not know where they were going. Moreover, after the incident, the person in charge of the defendant still said with disapproval that his advertisements were deceptive behaviors.

Combining the above three facts and evidence, according to the general rules of the Civil Law and the provisions of the Economic Contract Law regarding contract invalidity, the farming recovery contract between the plaintiff and the defendant was signed by the defendant by fraudulent means, and the farmer’s intention should be untrue. A contract deemed invalid from the beginning. The defendant should bear all fault liability for the invalidation of the contract. The plaintiff, as the victim, failed to see through the scam elaborated by the defendant, had no fault for the invalidation of the contract, and did not bear any responsibility. The defendant should compensate the plaintiff for all the direct economic losses suffered thereby.

Second, the defendant Jiaozuo Grain Transportation Comprehensive Company should bear joint liability. The author considered at the time that since the registered capital of Fidelity Breeding Factory was only 40,000 yuan at the time, even if the case was successful, it would be difficult to guarantee that each farmer would receive compensation after execution. Therefore, the grain transportation integrated company was required to bear joint liability in the case. It was recognized by the court, which was another breakthrough in the success of the case. First of all, we believe that the Defendant Grain Transportation Comprehensive Company should also bear fault liability for the invalidity of the contract. After the company established a breeding factory, it lacked management. Knowing that the advertising was false and did not stop it, it expanded and deepened the scope of fraud. The company provided a business license to the notary office, which caused notarization errors; after the relocation of the breeding factory, when the farmers came to the company to inquire about the situation, the company blocked in every way These facts all show that when the company deceived the plaintiff in the breeding plant, it not only knew it well, but also jointly implemented fraudulent acts. Secondly, the breeding plant is a collective subordinate unit established by a comprehensive food transportation company and does not possess legal personality. As a unit with the legal personality of its superior, the company should bear joint and several liabilities for the debts of its subordinate breeding plant.

In response to our agency opinions, the defendants Fidelity Breeding Factory and Grain Transportation Integrated Company both put forward their own opinions. Fidelity Breeding Factory believes that: 1. The nutria recycling advertisement published in Jiaozuo Daily is an invitation to offer, not an offer, so even if it contains exaggerated words such as "registered capital" and "state-owned enterprises", it does not There is fraud. 2. It was honest and fair when signing the contract for ordering and selling nutria with the farmers. While signing the contract, he explained to the farmers the risk of "nutria". Since the price of nutrias fluctuates too much, it is agreed by both parties that most of the contracts will be recycled at 50% of the current purchase price, and some will be purchased at that time. 70% of the price is recovered. The contract did not violate national laws and policies, and there was no fraud.

Regarding the question of whether an advertisement is an offer or an invitation to an offer, it must be judged according to the specific circumstances. However, there is no doubt in the case that the defendant’s commitment in the advertisement has completely exceeded the characteristics of exaggerated advertising. Disregard the facts and deceive the masses. The masses came in response to the advertisement, and the defendant did not timely and truthfully inform which parts of the advertisement content were untrue, exaggerated or false. For a mass of people with low cultural level, little knowledge of nutria and eager to get rich and change their life’s plight, they regard the advertisement as an invitation to offer that they don’t know about. Taking responsibility for the problem is obviously unfair in this case.

Regarding whether the defendant has explained to the farmers that the risk of breeding is a fact that needs evidence to be proved at the time of signing the contract, even if an ordinary person knows the truth of unfounded words, at least the risk statement should be in black and white in the contract. As a risk reminder, the defendant has tirelessly set various restrictions on the plaintiffs in the contract. Can’t we list one more risk reminder? However, there was no mention of risk in the contract. Obviously, the defendant had deliberately deceived and never considered the legitimate rights and interests of the farmers and business risks. Even though we admit that the defendant verbally stated that there is a risk in breeding nutria, this does not deny the defendant’s fraudulent behavior. All acts of informing about risks are based on their false descriptions of their true business conditions, and they are all concrete means to continue to defend the lies they have compiled. The kind-hearted people only know that any commercial behavior is risky. The understatement of the verbal reminders by the businessmen is only their usual tricks and gestures; they only know that the terms of the contract are clear, and the content in black and white in the advertisement is "guaranteed three years of profit and ten thousand". Everyone like them witnessed it with their own eyes. They believed it, believed that their investment could be recovered, and could even get rich. Is this trust wrong? Can it be an excuse for the deceiver? Obviously it won't work.

The resale price agreed in the contract shall be recovered according to a certain percentage of the "purchase price at that time". The defendant believed that the purchase price at that time was the market price after the market price fell. As a result, the nutria, which was previously worth more than 1,000 yuan, was only worth more than 200 yuan. However, after carefully studying the wording of the price in the contract, it is not difficult to find that the "purchase price at that time" refers to the price at the time of the purchase, and the recovery price should be determined based on a certain percentage of the purchase price, rather than the market price of the nutria at the time of the lawsuit. Moreover, it was proved by the parties that when the defendant signed the contract with the plaintiff, they even calculated the recovery price based on the purchase price at that time, and promised the farmers that it would be recovered at that price. If the defendant says that it is the current market price, it can only explain one problem. When signing the contract, the defendant deceived the farmers with false information about the recovery price.

In order to evade the joint and several liability that the Jiaozuo Food Transportation Comprehensive Company should bear as the superior unit of the Fidelity Breeding Factory, the main reply to the court is that the Breeding Factory is an individual industrial and commercial household under the name of a collective. According to Article 49 of the Supreme People’s Court’s Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China (for trial implementation), “Individual partnerships or individual industrial and commercial households are mistakenly registered as collectively owned enterprises by the administrative department for industry and commerce, but they are actually individual partnerships or Individual industrial and commercial households shall be treated as individual partnerships or individual industrial and commercial households" and Article 29 of the "General Principles of Civil Law of the People's Republic of China" "Individual industrial and commercial households, rural contracted business households’ debts, a business shall bear its personal property, and the family shall According to the provisions of “family property shall be used for business operations”, all civil legal acts in the operation of the breeding plant and the civil legal liabilities arising therefrom shall be borne by itself. It is wrong to claim that the company shall bear joint and several liability at the time of the lawsuit without legal basis.

However, Jiaozuo Grain Transportation Comprehensive Company has never been able to prove that Fidelity Breeding Factory is an individual industrial and commercial household erroneously registered by the industrial and commercial administration. The facts ascertained by the court later also proved that when applying for the establishment of the Fidelity Breeding Plant, the Grain Transportation Comprehensive Company issued certificates of funds, personnel, and venues to the administrative department for industry and commerce, and was approved by the administrative department for industry and commerce to establish Jiaozuo Grain The reason why the transportation integrated company Fidelity Breeding Factory is wrongly registered cannot be established.

After the trial of the case, in order to reduce the difficulty of the court’s work, the attorney representing the plaintiff, based on the opinions of the plaintiff, suggested to the court: if the breeding contract is confirmed to be invalid, requesting the breeding plant to return all the money for the purchase of rats will cause waste. , Is not in line with the interests of the masses, so it is recommended to sell nutria to farmers. This suggestion was adopted by the collegiate panel.

On July 12, 1994, the Jiaozuo City Intermediate People’s Court made a judgment (1994) Jiao Jing Chu Zi No. 177 after a serious trial of the case based on the facts and the law. The court held that the advertisement is an offer and the content of the advertisement must be true. Deceive users and consumers in any form. The breeding factory has repeatedly advertised with false content to conceal its true situation and induce the majority of users to make a wrong expression. Moreover, the breeding factory has not recovered a pair of nutria, and there is no sincerity in fulfilling the contract. The contract signed by the household shall be invalid. The property acquired by both parties as a result of the contract shall be returned in full as the appropriate value to offset part of the price. Therefore, the farm shall compensate for the losses caused to the farmers. When Jiaozuo Grain and Oil Transportation Comprehensive Company applied for the establishment of Fidelity Breeding Factory, it issued capital, personnel, and site certificates to the administrative department for industry and commerce, and was approved by the administrative department for industry and commerce to establish the Fidelity Breeding Factory of Jiaozuo Grain and Oil Transportation Comprehensive Company. The reason why the company’s breeding plant was incorrectly registered cannot be established. Moreover, the company did not take any measures to stop the false advertisements in the breeding plant repeatedly in the name of the Jiaozuo Grain and Oil Transportation Comprehensive Company Fidelity Breeding Plant. Jiaozuo Grain and Oil Transportation Comprehensive Company shall bear joint and several liability for the actions of its branches. According to Article 180 of the "Civil Procedure Law of the People's Republic of China", the "General Principles of the Civil Law of the People's Republic of China" Article 58 Paragraph 1 Item (3), Paragraph 2 and Article 106, "The Supreme Opinions of the People's Court on Several Issues Concerning the Implementation of the "General Principles of the Civil Law of the People's Republic of China" (for trial implementation)" Article 68, Article 7 Paragraph 1 Item 2 of Article 16 of the "Economic Contract Law of the People's Republic of China" The judgment is as follows:

1. The nutria supply and recycling contract signed by Fidelity Breeding Factory and farmers is invalid and terminates its performance.

2. Each pair of nutria is priced at 30% of the supply price specified in each contract, and the nutria still belongs to the farmer. The breeding factory shall deduct the price based on the supply price of each contract and return the balance to the breeder ( If there is a death deposit contract, the farm should also refund the death deposit).

3. Fidelity Breeding Factory shall compensate the farmers for economic losses, the construction cost is 74 yuan per household, and the other losses are 65.20 yuan per pair per day (time from the date of signing each contract to the day when the payment is paid)...

When the author prosecuted the case, more than 70 farmers registered to participate in the lawsuit. During the proceedings, the number of farmers registered to participate in the case increased to 146. Obviously, this case is a class action lawsuit with a large number of people. The author below briefly introduces the class action.

2. Class action

The embryonic form of the class action started in the 17th century Britain promulgated the peace decree. The class action at that time was similar to the "ordinary joint action" in my country's current law, and since then, countries around the world have followed suit. Both Japan and Germany have such systems. Today, this type of system in Japan has evolved into a representative litigation system, and Germany has formed a group litigation system. At the beginning of the nineteenth century, the United States enriched and developed the principles of the British litigation system to transform it into a "class action." In 1848, the "Field Code" of the United States first provided for this system. The law stipulates: "The problem is the common interests of the majority, or the large number of parties who can be parties and cannot make them all appear in court. One or more Individuals file a lawsuit or be sued for the interests of all group members." The deficiency of the class action law in the Code is that it does not specify whether the judgment of the class action is binding on all members of the group, and this type of class action system is only applicable to certain group actions. Some states. In 1857, the U.S. Supreme Court heard the "Smith v. Swarst" case, and the acceptance and judgment of this case formally established the class action system in the United States. In 1938, the U.S. Congress authorized the Federal Supreme Court to formulate the "U.S. District Court Federal Procedure Rules" to take effect. The law specifies in detail which cases are applicable to class actions and breaks the tradition that class actions are only applicable to equitable relief. Introduced into the realm of common law relief.

The United States Federal Civil Procedure Rules were revised twice in 1996 and 1997. The revised United States Federal Civil Procedure Rules further stipulated the prerequisites, limitations and matters that should be reviewed for the application of the group representative litigation system, so that the group Litigation legislation is more applicable and specific.

(1) The concept of class action

Many countries in the civil law system have introduced litigation systems similar to those of the United States, and have made corresponding changes to the class action system in accordance with their own litigation characteristics, as well as in accordance with the strict logical system and legal concepts of the civil procedure law. , Makes the concept of class action different from common law countries, and even between civil law countries. A clear concept of class action can only depend on different contexts and the subjective choices of researchers.

The legal circles in my country generally use the concept of class action in the following senses: First, the broad class action (group action). The class action under this concept is not a specific reference to a specialized system, but is a collective academic concept like group action and class action. Under this concept, systems similar to this type of system in litigation in various countries can be classified as class actions, and the US class action is just one of the typical systems. Professor Zhang Weiping believes: “When describing numerous litigations, people often use the terms group litigation, class action, majority litigation, representative litigation and class action.” Under the understanding of this concept, China’s class action is actually Refers to the "Civil Procedure Law" Article 54 with a certain number of representatives and Article 55 with an uncertain number of representatives. Therefore, in the "Course of Civil Procedure Law" edited by Han Xiangqian and Sun Shulan, it is stated: "Representative litigation, also known as group litigation, is a new addition to China's civil procedure law based on the needs of trial practice and drawing on foreign legislative experience. An important litigation system.” Chapter 8 of “Theory and Pragmatics of Civil Trials” edited by Ma Yuan, former vice president of the Supreme Court, directly uses the concept of “class litigation” to explain China’s “Civil Procedure Law”. 》The representative litigation system of Article 55. The "Civil Procedure Law Course" edited by Qi Shujie also believes that: "The provisions of Article 55 of China's Civil Procedure Law are basically similar to the class actions stipulated in the United States and other countries. Therefore, we have changed Article 55 of the Civil Procedure Law. Defined as a class action suit not only adapts to the legislative trend of various countries in the world, but also meets the needs of China's social development." Second, the narrow concept of class action. In theory, class action in a narrow sense actually refers to the model represented by the “class action” in the United States or the lawsuit merger model in the United Kingdom and the United States. In this sense, neither the group litigation in Germany, the selected representative litigation in Japan nor the representative litigation in my country fall into this category. "Compared with the two types of group litigation, the selected party litigation and the group litigation, the class action in the United States is more aggressive and pioneering. It can be said to be an advanced form of group litigation."

The concept of class actions used by the author in this article refers to class actions in a broad sense.

(2) The value and basic functions of modern class action

Group lawsuits are mainly filed for large-scale infringements, and often involve a large number of one or both parties. Therefore, compared with ordinary civil lawsuits, they have a higher public welfare effect and are more effective for victims. The group provides timely and effective relief. Initiating a class action lawsuit can often mobilize the power of the society and the people to impose strong sanctions on the offenders, so that the consequences of the illegal actions will not be worth the loss. Initiating a class action and ruling that the infringer loses the lawsuit can promote the strengthening of their sense of social responsibility and professional ethics, as well as their awareness of crisis, thereby advantageously controlling or reducing the occurrence of infringements. A class action is resolved under the wisdom and coordination of the parties, lawyers, judges, etc., which can lead the whole society to actively seek more and better solutions to group disputes, and establish a more reasonable and diverse dispute resolution mechanism. Realize the stability and harmony of social order. More importantly, it can improve the awareness of honesty, rule of law, and responsibility of the entire society, and establish mechanisms for the realization and protection of rights.

A country and society ruled by law should be a country and society where citizens’ rights awareness and legal awareness are awakened, and the people are willing to take up the weapon of law to protect themselves and fight for even the smallest rights; a country and society ruled by law should be a public opinion Pay attention to issues, open government information, and promote the democratization of decision-making or legislation through the people's active participation in decision-making. In a class action, each seemingly weak party can use their own forces to influence or change the process of the rule of law in a country and society through a joint approach. They are all promoters of the country’s rule of law.

In addition, class action is conducive to litigation economy and efficiency. Combining multiple single litigations for trial will undoubtedly save litigation costs and improve litigation efficiency. This is also beneficial to a country’s limited judicial resources. In the course of specific case trials, the court can uniformly apply the law, which can avoid the individual litigation of the parties and the different judgments caused by the discretion of different judges, guarantee the same rights and receive the same relief, and realize the people before the law. People are equal, and at the same time, since the effective class action judgment is equally binding on each registered party and the victim who has not registered but filed a lawsuit during the statute of limitations, this overcomes the drawbacks of repeated lawsuits to a certain extent.

(3) The legal basis of the class action in my country

In our country, class action refers to representative litigation, that is, one or more parties have a large number of parties, and one or more of the parties are represented in the litigation and accept the result of the litigation. Article 54 and Article 55 of the Civil Procedure Law and Articles 59 to 64 of the Supreme People's Court's judicial interpretation on the application of the Civil Procedure Law provide for representative litigation.

Article 54 of the "Civil Procedure Law" stipulates that in a joint litigation involving a large number of parties, a representative may be selected by the parties to carry out the litigation. The litigation actions of a representative are effective for the parties it represents, but the representative's change, abandonment of litigation claims, or acknowledgment of the opposing party's litigation claims, and settlement must be agreed by the parties represented. Article 55 stipulates that the subject matter of the litigation is of the same type and there are a large number of parties. The number of parties has not yet been determined at the time of the lawsuit. Right holders registered with the people's court can select representatives to initiate litigation; if no representative is selected, the people's court may negotiate with the right holders participating in the registration of the representative. The litigation actions of a representative are effective for the parties he represents, but the representative's change, abandonment of litigation claims, or acknowledgment of the opposing party's litigation claims, and settlement must be agreed by the parties represented. Judgments and rulings made by the people's court shall be effective for all right holders participating in the registration. If a right holder who has not participated in the registration initiates a lawsuit during the statute of limitations, the judgment or ruling shall apply.

After the implementation of the "Civil Procedure Law", the Supreme People's Court issued the "Opinions on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China" on July 14, 1992, in which more specific provisions were made for representative litigation . Article 59 of the judicial interpretation stipulates that the number of parties specified in Article 54 and Article 55 of the Civil Procedure Law is large, generally referring to more than ten persons. Article 60 stipulates: According to Article 54 of the Civil Procedure Law, if one party has a large number of persons and is determined at the time of litigation, all parties may elect a common representative, or some parties may elect their own representative; The parties representing the representative may participate in the litigation by themselves in the necessary joint litigation, and may also sue in the ordinary joint litigation.

Article 61 stipulates: According to Article 55 of the Civil Procedure Law, if one party has a large number of parties and is uncertain at the time of litigation, the party concerned shall elect a representative. If the party is unable to do so, the people’s court may propose a candidate to negotiate with the parties. If it fails, the people's court may also appoint a representative among the litigants.

Article 62 stipulates that the number of representatives specified in Article 54 and Article 55 of the Civil Procedure Law shall be two to five persons, and each representative may appoint one to two persons as agents in litigation. Article 63 provides that: for cases accepted in accordance with Article 55 of the Civil Procedure Law, the people's court may issue an announcement to notify the right holder to register with the people's court. The announcement period shall be determined according to the circumstances of the specific case and shall not be less than 30 days at least. Article 64 stipulates that: a party registered with the people's court in accordance with Article 55 of the Civil Procedure Law shall prove its legal relationship with the other party and the damage suffered. If it cannot be proved, the registration shall not be granted, and the parties may file a lawsuit separately. The judgment of the people's court shall be executed within the scope of registration. If the right holder who has not participated in the registration filed a lawsuit within the statute of limitations, and the people's court determines that his request is valid, the ruling shall apply the judgment and ruling made by the people's court.

From the above laws and judicial interpretations, it can be seen that my country's representative litigation system is a product of the combination of joint litigation and litigation representative system. In practice, this system can facilitate the settlement of mass litigation, expand the judicial function in dispute resolution, and maximize the role of judicial resources. At the same time, it also meets the needs of the market economy and helps protect the interests of weak parties.

(4) The constituent elements of a class action in my country

From the "Civil Procedure Law" and its judicial interpretation, we can see that the constituent elements of my country's class action or representative litigation system include the following aspects:

(1) There are a large number of parties. Representative litigation is divided into two categories: one is the representative litigation with a certain number of representatives; the other is the representative litigation with an uncertain number of representatives. The number of people is required to be more than 10 people.

(2) There is an interest relationship among the majority of parties, that is, the subject matter of the litigation of one of the parties is the same or belongs to the same category. The internal relationship of one of the parties may be a necessary joint litigation relationship or a common joint litigation relationship, which determines that the subject matter of the litigation is the same for the former and the same for the latter.

(3) The method of claim or defense in the class action is the same or all members are established. When a representative elected by the majority initiates a lawsuit, the representative's request for litigation is the litigation group representing the entire majority and is valid for all litigation members. At least the defense methods and litigation claims between members of the majority should not contradict each other.

(4) The representative is qualified. The representative in the class action must be a member of one of the parties it represents, and have common interests with other members; it must be selected by the right holder registered in accordance with the law or negotiated by the people’s court with the right holder participating in the registration Elected; have the corresponding litigation ability; be able to perform the duty of representation correctly, and be able to protect the legitimate rights and interests of all members in good faith.

The nutria recovery contract dispute handled by the author is a typical class action case. The case was influential in Henan Province and the whole country at that time. Many media including Jiaozuo Daily and Henan TV have reported on it in detail. The "Legal System Daily" also made a full page report entitled "The Disappearance of a Myth-The No. 1 Coypu Class Action Case in Central Plains". In the above, the author discussed the specific operation of the class action in China’s judicial practice based on the case. Next, I want to talk about how to coordinate between the parties, the parties and the court as a lawyer when facing a large number of parties. Relationship, so that such litigation can be satisfactorily resolved.

3. Coordination and handling of class actions by lawyers

(1) Coordination and handling of class actions by lawyers before the lawsuit

During the consultation process, after listening to the facts of the case introduced by the people, the author realized that the case was serious. This is the first class action case of this kind. If handled properly, it can not only recover the economic losses of hundreds of people, but also play a role in educating the law. It can make the masses feel the effectiveness and authority of legal remedies; if it is not handled properly, the interests of hundreds of masses cannot be guaranteed. If the conflicts intensify, it is very likely to cause mass petitions. Conducive to social stability.

The author immediately sent someone to the industrial and commercial authority to check the archives of the breeding plant, and went to the notary office to inquire and investigate the relevant parties. The results showed that the breeding plant was a branch of Jiaozuo Grain and Oil Transportation Comprehensive Company established on April 21, 1993. With a capital of 40,000, it does not have the qualifications of a legal person, which is essentially different from the advertisements published by the breeding factory in the newspaper. Based on these investigations, the author preliminarily determined that the breeding factory was suspected of fraud when signing the nutria breeding and recycling contract. If the fraud was established, the breeding recycling contract should be invalidated and the breeding factory should return the money it received for the purchase of rats. Jiaozuo Grain and Oil Transportation Company, as its superior unit, shall bear joint liability. After listening to the author's analysis, the farmers unanimously agreed to entrust the author to file a lawsuit with the Jiaozuo Intermediate People's Court.

Since there are only a dozen farmers who came to consult, and the number of deceived people should be as many as 100 from the contract number, in order to let more deceived people understand the true situation of the case and get relief for their rights as soon as possible, the author Send a letter of inquiry according to the addresses of the 75 farmers found from the notary office, informing them that if they are willing to join the class action, they should register with our institute and inform each other. At the same time, the "Jiaozuo Daily" also published an article written by our lawyers introducing how nutria farmers should litigate after being deceived, focusing on introducing to the masses the basic knowledge of class actions in my country. At the same time, the "Jiaozuo Workers Daily" also published the relevant information of the case on the front page of the newspaper. The deceived people came to our office to register after learning the situation. As of March 1994, more than 70 deceived farmers joined the lawsuit. At that time, the author judged that the time for prosecution was ripe.

When preparing a lawsuit, one has to consider the important point of class action lawsuits in China, which is different from joint lawsuits. It is necessary to first select a qualified litigation representative from among the numerous plaintiffs, who is to be selected as the representative, and become the one before the author at the time. The first problem.

Only by selecting qualified representatives can we better represent the interests of many parties, and only by selecting qualified representatives can we better communicate with the court under the coordination of lawyers and clearly express our own interests. The lawsuit request, and the circumstances of the case at that time were that the farmers were generally low-income earners, with low levels of education, some lack of legal knowledge, weak legal awareness, and even normal legal procedures in order to immediately recover their losses. Suspicion arises that some parties disregard the overall situation and are self-centered. If they cannot select a few representatives who are recognized in their hearts and have prestige to represent them so that the problem can be solved, it is very detrimental to the progress of the case. It can even cause social problems. For this reason, through patient negotiation between lawyers and clients and the lawyers’ meticulous work, everyone agreed to elect Cheng, Bai, Meng, Li, and Zhan as litigation representatives. Some of them were political workers and some were factory managers. , And some are technicians. They not only have more maneuver time, but also higher prestige, which helps the masses to accept it generally.

After all the preparations before the lawsuit were completed, on March 1, 1994, the author took Fidelity Breeding Factory and its establishment, Jiaozuo Grain Transportation Comprehensive Company as the co-defendants, and the representative litigation filed a submission to the Jiaozuo Intermediate People’s Court. The indictment demanded compensation for the economic losses caused to the farmers. The Jiaozuo Intermediate People's Court carefully reviewed the elements of the class action suit and the situation of the five representatives, and found that the conditions for filing the case were met and decided to accept it. In the same year, on April 26 and 29, the Jiaozuo City Intermediate Court issued an announcement in the "Jiaozuo Daily" in accordance with the relevant provisions of the "Civil Procedure Law", informing unregistered farmers of Fidelity Farms to register with the court before May 30 . On May 30, 1994, 146 farmers who had read the announcement and learned about the lawsuit gathered in the trial hall of the Jiaozuo Intermediate Court to confirm that the aforementioned five persons were their representatives and prepared to participate in the lawsuit.

(2) Coordination and handling of class actions by lawyers in litigation

In the process of litigation, in order to let many parties who did not appear in court and the public who are concerned about the case to know the progress of the case in a timely manner, considering that the case under the supervision of public opinion will be more conducive to the public’s understanding of judicial justice, and to avoid information failure In the case of timely disclosure, the masses are likely to take radical actions that affect social stability. With the permission of the Jiaozuo City Intermediate Court, dozens of reporters from various news media in Jiaozuo City were allowed to enter the trial court to listen to and continuously reported the entire trial of the case. process.

In the trial process of the case, it is considered that the number of people involved is large, the ideological status is unstable, and the poor handling can easily lead to social disturbances. Acting as the attorney of this class action, in order to overcome such inherent disadvantages of general class action. In order to make the progress of the lawsuit orderly, the masses at ease, and the court to hear the judgment with ease, public opinion does not interfere with the independent trial of the court, and does not affect the normal order of the society, the author has adopted regular case briefings and case analysis with the plaintiff. Meeting, by focusing on solving the questions of the masses at a fixed time and place, reporting the progress of the case, and conducting legal education to stabilize the mood of the masses. At the same time, we carefully listened to the opinions of the masses, brainstormed, and positively affirmed the reasonable and correct opinions put forward by the masses and fed them back to the court.

At this time, as an attorney representing the case, it is obviously not enough to have superior litigation skills and professional legal knowledge. What is more important is to have good communication and coordination skills, not only to be able to listen to the opinions of the masses patiently, but also Answer and solve their questions carefully and seriously. At the same time, they must be able to understand their mood, calm their arrogant emotions, arrange the litigation requirements between them in a unified manner, and communicate these legal requirements with the court in a timely manner.

Four, conclusion

After the judgment was issued, the 146 plaintiffs who participated in the litigation were quite satisfied with the result of the judgment. The author knows that such a result is hard to come by. Through this class action, the author realized that as a lawyer, he should have strong coordination skills when representing class actions, and be able to effectively communicate with many parties and the court. In addition, in the process of the case, lawyers should give priority to the factors of social stability, negotiate and elect representatives that can satisfy and convince the majority of the parties, so that disputes can be resolved in a reasonable and timely manner, and they must find ways to facilitate the parties. After all, there are a large number of parties. At that time, their personal qualities and legal standards were uneven, and they knew little about the court trial procedures. At the same time, in order to quickly resolve the case and reassure the masses, lawyers had to find ways to facilitate the court’s trial work and promptly feedback the opinions of the masses. The court allows the court to accept the lawyer's representative opinions to the greatest extent under the premise of lawfulness, and protect the interests of the masses.