集团诉讼起源于美国,一方面作为一种制度创新解决了部分群体性诉讼的效率与公平问题,对大企业的违法行为利用司法手段进行了遏制,使弱势的消费者的权益得到一定的维护。其中的胜诉酬金制和选择退出制,在美国的法律文化环境中刺激了集团诉讼的实施,激发了制度活力。另一方面集团诉讼在司法实践中的应用又引发了新的公平与效率问题,譬如赔偿金与律师费的公平问题、滥诉导致的效率问题等。集团诉讼在美国几十年的发展中不断适应调整,力求在公平、效率的二律背反中找到平衡点。法律移植的关键是既要把握被移植法律制度的本质和创设环境,又要与本国司法文化和社会背景相适应,美国集团诉讼的本质是其主要适用于分散型小额侵权纠纷,在消费者保护领域尤其明显,本文试图对这一本质分析论述提出适合中国司法文化的借鉴方案。 Group litigation originated in the United States. On the one hand, as a system innovation, the litigation efficiency and fairness of some group litigation have been solved. Judicial measures have been used to curb the illegal activities of large enterprises, and the rights and interests of the disadvantaged consumers have been maintained. The winning compensation system and opt-out system stimulated the implementation of the group litigation in the legal and cultural environment of the United States, which stimulated the vitality of the system. On the other hand, the application of group litigation in judicial practice has triggered new problems of fairness and efficiency, such as the fairness of compensation and legal fees and the efficiency issue caused by abuse of litigation. In the development of the United States over the past decades, the group litigation has continuously adapted itself to the adjustment and sought to find a balance between the two laws of fairness and efficiency. The key of legal transplantation is to grasp not only the nature of the transplanted legal system and the founding environment, but also the judicial culture and social background of the country. The essence of the American group litigation is that it is mainly applicable to small-scale infringement disputes and consumers In particular, the field of protection is very clear. This article attempts to draw lessons from this essential analysis suit for the Chinese judicial culture.