商业经济与管理

我国消费公益诉讼以众多消费者之消费私益受到侵害为其条件，从《民事诉讼法》第58条和《消费者权益保护法》第47条的规范表述和规范逻辑来看，消费公益实际上寄生于消费私益之中。最高人民法院在相关解释中将消费公益与消费私益进行区分构造，面临的一个困境就是消费公益概念的抽象化与空洞化，以至于在个案中对消费公益诉讼之具体请求权的主张，必须借助于有关消费私益救济的规范才能具体化，从而导致消费公益诉讼与消费私益诉讼在诉讼请求上的重叠性。解决问题的理性思路是将消费公益复归众多消费者的集合性私益，参照退出制的集团诉讼，并按照法定诉讼担当原理，对现有的消费公益诉讼进行程序构造。同时扩张消费公益诉讼的外延，将消费者之代表人诉讼也纳入消费公益诉讼的范畴之下，同时对消费领域的公益确认诉讼和公益示范诉讼等进行探索。

The consumer public interest litigation in China is conditional on the infringement of the private interests of many consumers.From the normative expression and logic of Article 58 of the Civil Procedure Law and Article 47 of the Consumer Rights Protection Law,we see that consumer public interest is actually parasitic among consumer private interests.The Supreme People's Court distinguishes between consumer public interest and consumer private interest in relevant interpretations,which leads to a dilemma of abstraction and emptiness of the concept of consumer public interest,so that the claims for specific cause of action of consumer public interest litigation in individual cases can only be concretized by virtue of the norms of consumer private interest relief,which result in the overlap of consumer public interest litigation and consumer private interest litigation in claims.The rational approach to solving the problem is to restore consumer public interest to the collective private interests of many consumers,to refer to the opt-out mechanism of group litigation,and to construct the existing consumer public interest litigation procedures according to the principle of legal litigation responsibility.At the same time,the law should cover the scope of consumer public interest litigation to include consumer representative litigation within the scope of consumer public interest litigation.Furthermore,we should explore public interest recognition litigation and public interest demonstration litigation in the consumption field.