Research On The Opportunistic Litigation

Opportunistic litigation refers to the party’s behavior of abusing litigation rights based on the motive of "opportunism". In the case where there is no real sense of justification, the party starts and uses litigation procedure to seek improper purpose to "profit himself at the cost of others". At present, there is no clear and unified understanding of the concept of such litigation in theory circles. Therefore, it is necessary to conduct a comprehensive, in-depth analysis and research on opportunistic litigation.This article starts from the analysis of Guidance Case No.2of the Supreme Court, the contract dispute case between Wu Mei and Xicheng Paper Company ("Wu Mei case" in short). On the basis of empirical research, it points out that Xicheng Paper Company, who starts the appealing and supervision procedure in the motive of "opportunism", is meant to delay repayment, waste Wu Mei’s time, efforts and money; this behavior spends a lot of judicial resources, but it does not violate the procedural law in form, so the court is difficult to regulate it. Thus, I come to the preliminary conclusion that there is an "external space" in our current civil procedure which makes opportunistic litigation intrude.From theoretical perspective, opportunistic litigation owns the characteristics different from general procedural behaviors. The behavior subject of opportunistic litigation can only be the party who starts the procedure initiatively, the other side who participate in the procedure passively can not become the subject; mostly, the party starts the procedure for improper purposes of wasting time,"hold-up", or threatening rather than seeking justice from the judge. Although the party’s behavior seems to be a legitimate use of litigation rules and procedures, in fact it is an abuse of litigation rights. Opportunistic litigation will cause great negative effects on the other party, the judge, and the society. According to two different time periods when the party is forming opportunistic motive and taking action, opportunistic litigation can be divided into "pre-litigation opportunism" and "post-litigation opportunism".From social science perspective, in addition to the imperfect of legal system, the cause of opportunistic litigation is more likely due to the influence of "interests first" social attitude and speculative psychology, such selfish behavior would not make the opportunist party suffer blames in his mind. In the case of information asymmetry, the party who conducts such opportunistic behavior with the consideration of self-maximizing is not only an aggression upon the interests of the other party, but also is a great challenge to the fair of law and the limited judicial resources, and it will cause great negative impacts on whole society.Against the pre-litigation opportunism, an ex-ante procedure can screen, eliminate it, the clarify system can eliminate the information asymmetry between the parties and the judges; as for the post-litigation opportunism, a certain ex-post punishment should be taken to increase the litigation costs of the parties. Based on ex-ante regulation, and ex-post punishment, plus a potential impact of social reputation, a long-term incentive mechanism could be built up. This mechanism works for both the parties and the judges. On one hand, it is possible to guide the parties to self-restraint and make proper behavioral choices close to legislative purpose; on the other hand, it can improve the ability and quality of the judges, improve the legal environment, and cause a win-win effect both on the law and society.