중국의 집단분쟁 해결제도에 관한 연구 －환경분쟁을 중심으로－

From the latter half of the 20th century, collective disputes are occuring very frequently irrespective of countries. The mainstream of the collective disputes consists of disputes surrounding the environmental pollution,product liability, consumer protection etc.. Since The Reform and Open policy is adopted, China shows us startling speed of economic growth and is often likened to the drastic development of Korea since 1960s. Especially, from the 1990s, with the deepening of the market economy system, the annual rate of economic growth is exceeding 10%. The economic development of China is concentrated upon the manufacturing industry, and is often called as the world factory. The fast-growing manufacturing industry inevitably has it’s dark sides, that is, environmental pollution, investment disputes, labor disputes and other similar collective disputes. China is no exception to this rule. To settle the frequent collective disputes, China already established the Representative Litigation System in 1992 through article 54 and 55 of their Code of Civil Procedure. Nevertheless, the courts of China have been reluctant to use this device in settling the rapidly increasing collective disputes. Nowadays, the courts are showing their tendency of preference for the Model Action which has no substantive provisional ground in the statute. The basic attitude of people’s courts toward collective disputes can be summed up as follows. (1) Avoid the case if it is possible, (2) If unavoidable,accept it as individual cases or as joinder cases to eliminate the collective characteristics, (3) Even though accepted as a joinder case, select one typical claim from the collective claims and judge it as a model case, and then,settle the other majority of cases through successive litigation procedures or mediation or settlement procedure based on the former judgment. This attitude reflects their intention to prevent the provocation of social turbulence which could be brought about by the collective trial. The root cause of this courts’ passive attitude lies in their political system. China is still a socialist(totalitarian) state, notwithstanding their market-oriented economy system. The status of courts is not so fully independent as the courts of countries with a firmly-established separation of three powers system. In this situation, courts cannot disregard the desire of the superior powers longing for social stability. But it is obvious that this passive attitude hampers the timely and proper solution of the collective disputes. The attempt to devise an expedient method(Model Action), ignoring the formal statutory device, is now incurring tremendous criticism in China. We can expect the policy conversion of the courts in the near future.