Research On The Burden Of Litigation Cost Transfer

For the parties,the cost burden of the lawsuit is mainly composed of three parts:the litigation cost,the appraisal fee and the lawyer's agency fee paid to the court.There is no dispute about the scope of the costs that the parties should pay to the court stipulated in the sixth section of the litigation cost payment method.There are differences about whether the appraisal fee is the litigation cost and whether the lawyer fee should be paid for litigation.The end of the final disagreement lies in:whether the appraisal fee and the lawyer's fee should be borne by the losing party or who should claim,or to adopt other burden principles?Specifically,there are two main aspects of the following aspects:First,the legislation set aside too broad space for the identification of related fee burden subject,the lawyer fee burden subject provides very narrow,the two rules of burden only made mandatory in general,which not only brings the burden in the subject according to the practical problem,but also will lead to the incentive mechanism of the system a mere formality,which fear litigation and Lawsuit Abuse,contrary to the purpose of the system design.Second,in the judicial practice,the court did not uniformly identify the subject of the burden of appraisal fee and the lawyer fee,and the allocation of the cost burden in the referee is more confusing.The above two problems lead to:On the one hand,due to the lack of cost expectation in the process of accreditation and attorney,due to the lack of cost in the process of accreditation and attorneys,there is uncertainty in the final court's burden and judgment,which will further damage the credibility and authority of the law;On the other hand,the adjustment of charging problems of lack of unified and clear norms,but also "incentive" lawyers during the agency to delay the proceedings or cases complicated,not only do not consider the complexity of the case,also did not consider other cheap and effective solution to the dispute,but will be placed in the case in a lengthy process.Even the malicious lawsuit.The cost of expansion has formed a huge obstacle for the parties to seek procedural relief,which is not only disadvantageous to the settlement of disputes,but also aggravates the judicial burden.The author thinks that the appraisal fee should be borne by the losing party,and the lawyer's fee should be based on the existing regulations.The reasons are as follows:(1)The way of litigation cost payment is not scientific for the Supreme People's court's"litigation fees for people's courts".The appraisal fee is still within the scope of litigation costs.Individual legal and judicial interpretations stipulate that lawyers' fees can be borne by the losing party,which does not mean that all cases can be extended to apply;(2)the nature and location of the two are different.The appraisal fee is a necessary expense for the court to carry out the evidence investigation.It has the nature of "public interest".The lawyer fee is for the purpose of pursuing "private interest" except for some specific cases;(3)there is no institutional foundation for the establishment of a comprehensive legal fee losing party's burden system in China;(4)the requirement of a fair and efficient target of value.The basis for this view is that the consideration factors for reasonable allocation of litigation costs lie in the incentive function of litigation cost system and the principle of honesty and credit in civil procedural law.