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Research on Test Case

Author: QianZuo
Tutor: TangLi
School: Southwest University of Political Science
Course: Procedural Law
Keywords: Mass Dispute Test Case Expansion of Decision Representative Litigation
CLC: D925.1
Type: Master's thesis
Year: 2009
Downloads: 182
Quote: 1
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Abstract


Complex and ever-changing mass dispute needs diverse dispute settlement mechanisms. Unfortunately, the jurisconsults in our county haven’t paid much attention to the study and research on alternative dispute resolution mechanisms, in which test case is such a good system ignored by them. In this article, author begins with the concept of test case, introduces its types, features and value. And then author compares test case of other countries in legislation and practice, analyzes the main relationship of the legal proceeding and the basis on expansion of the decision effectiveness. Finally author concludes drawbacks of representative litigation in China, and poses suggestions to build the system of test case in China.Besides foreword and conclusion, the article is divided into four sections.Chapter One An overview of test caseFirst of all, through the concept of test case and the discussion on its types, we know that test case is a mechanism, which chooses one typical dispute case and then process it as an sample to other similar cases. Based on the different way to select sample, test case can be divided into contract-mode, authority-mode and mixed mode. Test case is not restricted to resolve mass dispute, but its special characteristics and functions on mass dispute resolution make it become the focus of this paper. Secondly, the paper gives a summary of the characteristics of test case: the commonality on issue of the model case; the individuality on the trial of the model case; the procedure on the test case; the expansion on effectiveness of the decision. Test case and other group litigations have a common value system which can make people close to justice, improve judicial efficiency, maintain the stability of law and promote the fomulation and development of public policies.Chapter Two Comparision on legislation and practise of test case among foreigh countriesThis part mainly introduces legislation and practice of test case in United States, Britain and Germany, including legislative reasons, the scope of application and some important procedures. Secondly, through comparison, the paper demonstrates advantages and disadvantages of test case in these countries, and makes the conclusion that test case in Germany is better in the system design. Chapter Three Theory analysis on test caseFirst of all, through constructing models, this paper introduces the principal relationships in test case via graphics, and clarifies the relation and status among the court, the plaintiff, the defendant, as well as other litigants. Second, it analyses the basis of expansion of the decision effectiveness. Test case in different countries is built on the same legal basis, through different mechanisms of litigation and legal facts which makes decision effectiveness of model case expand conditionally to other non-model litigants. The paper demonstrates the philosophy that in order to make the certain model decision have the effectiveness beyond the case, it is necessary to give the appropriate prodecureal safeguards to the parties of other cases who will be affected by the effectiveness.ChapterⅣThe construction of test case in ChinaFirstly, civil procedure law of our country set up the system of representative litigation as mass dispute settlement mechanism. However, both in terms of theoretical and practical circles, the system hasn’t work well and the mass disputes have been divided into large numbers of individual litigations. Secondly, before the construction of test case in China it is necessary to make clear of some relations: the emerging dividing way to resolve mass dispute has certain common with test case, but it does not mean that this mode is just the test case; test case and the representative litigation complement for each other so that they can maintain long-term coexistence; in addition, test case is different from the precedent directing system essentially. Finally, this paper puts forward some ideas on construction of test case in China. Test case in China could learn lessons from the foundation of foreign theories and practices, but definitely not go beyond actual situation and locality. Particularly, in the aspects of the start of test case, the proceedings of litigation and the expansion of decision, we must design them carefully to be adaptive to China.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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