群体诉讼与司法局限性——以证券欺诈民事集团诉讼为例

群体纠纷人数众多,法院采取某种形式的合并审理,使一个司法判决对多数人具有约束力成为一个不可避免的选择。然而,随着判决约束人数的增加,不但诉讼代表者越来越有可能脱离法院和多数当事人的控制,而且伴随着司法裁决涉及利益的纬度、参与社会决策和资源分配的社会功能的不断扩大,司法所固有的局限性就越发凸现出来。诸如证券欺诈诉讼等群体诉讼是否能够采用集团诉讼模式,首先不是一个理论构建或者如何和本国民事诉讼法相衔接的技术问题,而更多的是一个司法政策问题。

On the Class-action and the Limits of Justice

It is hard to achieve an appropriate result through private law-enforcement, and the function of justice is also limited. Because of the number of victims concerned, the court has to combine the trials in certain form, so it becomes inevitable that one judicial decision will have binding forces on many vic- tims. However, along with the increase of the number of persons bound by the decision, not only the representatives of group class will possibly deviate the control of the court and the majority claimants of the group, but also the limits of justice will emerge more obviously because of the breath of interests in- volved and the social function of decision and resource distribution broadened. Whether the class-action should be adopted in litigations such as securities is not an academic issue or a technical linkage to current civil litigation law, but rather, an issue of judicial policy.