Study On Civil Litigation Cost System

Litigation cost system is an indispensable system in every country's procedural law. Litigation cost is an important issue which is related to right of action, credibility of the court, legitimacy foundation of judgement system and some other fundamental principle or value. Whether the litigation cost is reasonable or not is the most intuitionistic factor to estimate the safeguard level that citizens protected by law. Be tried in a court is a fundamental right that ruled by the constitution law. Reasonable litigation cost system could guarantee the realization of the right of judgement claim. If litigation cost is too low, it could make people institute legal proceedings in any situation, and give up other non-litigation solution way to settle disputes, causing frequent lawsuit abuse. It will not only waste the social wealth and resources which is already limited, but also occupy the space that disputes should be settled by litigation procedure. And it is also detrimental to the development of non-legal dispute resolution. Conversely, if litigation cost is too high, people will give up the use of the judicial process, making the judicial system non-existing. Therefore, the study of litigation cost system is significant to our country's lawsuit trial system and judicial practice. This paper studies on the litigation cost system relative system research systematically. On the analysis of existing litigation cost system's existing problems of our country, proposes the initial assumption for reforming the litigation cost system. Full text is divided into three chapters except preface and epilogue.The first chapter is basic theories of civil litigation cost system. First, the concept of civil litigation cost is defined. After analyzing advantages and disadvantages of the generalized and narrow concept of the civil litigation cost, the author defined the concept of the civil litigation cost is the cost that parties shall pay for proceed to civil action. And also by comparing and referencing the component of the civil litigation cost of the major countries (regions) of two genealogy of law, our civil litigation cost is composed of two parts:one part is the litigation fee or other application fees. The other part is the fee burdened by the parties. Secondly, this paper analyzes four theoretical viewpoints of the character of the litigation fee and other fees,. The author considers that compromise theory reveals the particularity of the litigation costs directly, makes clear the principle that common cost should be shared by the country and the parties. This theory is more scientific and worth to being adopted. Thirdly, the author analyses the disadvantages of the basis and standard of current litigation cost system. Finally, the author expounds the value of litigation cost system in civil litigation, in order to help framing a systematic and reasonable cost system.The second chapter is the history and current situation of our litigation cost system. First the author briefly introduces the historical development of litigation cost system. which is in turn from ancient times, the late qing dynasty, the period of ROC to the the founding of PRC. And the author also makes the corresponding analysis and evaluation to the history of civil litigation cost system. Secondly, the author analyses the current civil litigation cost system, and affirms the innovation of the " Method of Paying Litigation Cost" (hereinafter referred to as the "new method"). The "new method" has the innovation of concept and system in varying degrees. It ensures the realization of the right of action, establishes the principle of the litigation cost ruled by legal, changes the subject from charge to pay, and standardizes the management and supervision mechanism of litigation cost, reduces fee standards significantly and has more specific provision of the legal aid system, etc. Of course, at the same time, the "new method" has many deficiency in the analysis and research. Some legislative spirit in relevant provisions is not consistent with law. Individual provisions conflict, and some provisions do not conform to the legal principles, and lack of maneuverability. In addition, the author discusses the impact to the people's court after issuing the "new method" particularly. The funds of courts has the tendency of deficiency. The leap caseload makes the contradiction that the cases are more people is more prominent. The cases of gratuitous litigation and malicious prosecution is increasing, etc.The third chapter is the reform of our country's civil litigation cost system. The author proposes the initial assumptions for reforming the litigation cost system in this chapter. First, we must set up the correct lawsuit charging view. In the process of designing system and the judicial practice, we should abandon the idea of power standard, and start with the interests of the parties. Make sure that the guiding ideology of civil litigation cost system is consistent with the fair and benefit of civil procedure. Secondly, we should strive to achieve litigation costs constitute scientific and collecting standard rational. Make the parties expenses properly be into legal litigation cost range. And make a full consideration of the imbalanced development situation, the litigation cost is paid according to litigation process and the portion of stage. It can calculate the litigation cost more accurately, make the charge of the people's court more directly and transparently. Thirdly, give the parties the right of appeal if they refuse the distribution of litigation costs in order to supervise and limit judicial authority by strengthening the right of action. Finally, establish and perfect the relevant system. We should build a system to regulate the behavior of abuse of the right of action, perfect the legal aid system to give legal help to the people who have economic difficulty, establish lawsuit insurance system to disperse litigation risk and reduce the financial pressure, perfect the alternative dispute resolution mechanism to alleviate the conflict between the local society and the modern rule of law and protect the judicial resources. We also should reform the fiscal system of the people's court, make the courts be financially independent, and guarantee the people's court have necessary funds expenditure, etc.