| Litigation is the ultimate choice for the parties to resort to justice.Litigation costs are considered “The cost of producing justice”.The parties’ consideration of litigation costs and benefits determines whether they can “close to justice”.In the context of the surge in civil cases,China’s existing litigation cost transfer mechanism is insufficient to meet the requirements of all parties.The Third-Party Litigation Finance system can provide a new way for the parties with weak economic affordability and risk tolerance to afford litigation costs,and realizes the litigation costs to the capital market.This paper starts with the introduction and development of the system,discusses the necessity and feasibility of introducing the system to China based on extraterritorial experience,and expounds the operation mechanism of the Third-Party Litigation Finance system.In turn,it provides a new perspective and framework for the construction of China’s Third-Party Litigation Finance system.The Third-Party Litigation Finance system arises from the litigation philosophy and litigation cost factors.It is a financing act with both legal and financial attributes.The fusion of law and capital markets is the realistic basis for its development.The Third-Party Litigation Finance has the characteristics of “Maintenance and Champerty”,and the relaxation of the “Maintenance and Champerty” is a prerequisite to implement the system.The Third-Party Litigation Finance is a mechanism for transferring litigation costs,the high litigation costs is the direct cause of the parties seeking this system.If the parties are unable to afford the costs and risk of litigation,it can help the parties to resolve the litigation costs and risk,this dual function can effectively meet the actual needs of parties “close to justice”.The Third-Party Litigation Finance system has rich practical experience abroad.It has developed rapidly in the Anglo-American legal system.It has undergone a process from prohibition to revival in England,formed a “fragmented” position in the United States,andmatured in Australia.In addition,new breakthroughs in the arbitration field in Singapore and Chinese Hong Kong have also brought useful enlightenment to China.However,in the civil law countries represented by Germany,its market status is weak.The development trend of the Third-Party Litigation Finance system in different jurisdictions is closely related to the litigation system and litigation concept of each country(region).These extraterritorial experiences can provide useful references for the construction of China’s Third-Party Litigation Finance system.The operation of the Third-Party Litigation Finance system is reflected in the interaction between investors and the parties driven by their respective interests.In terms of scope,the parties can be divided into two categories,one tends to obtain financial support,and the other prefers to transfer litigation risks.Cases applicable to Third-Party Litigation Finance need to be rigorously evaluated by investors.The type of case has not yet formed a type trend in China,but several special types of cases have greater market potential.In terms of operating model,Third-Party Litigation Finance is based on financing contracts.The funding terms,income distribution terms and litigation control terms form the core of the contract.In the process of managing funds,investors need to consider the relationship between capital investment and income,and reasonably avoid investment risks.With the participation of investors,the litigation will form a new interest pattern.As a result,the system may bring the risk of inducing litigation,unfair trade,hindering dispute resolution,and influencing the two forces,but its unique internal structure and existing institutional supply can make it have a good risk healing ability.The construction of the Third-Party Litigation Finance system must be gradual,and can be integrated with China’s market status and current litigation order.The current litigation cost system and litigation cost transfer mechanism in China shows that the inclusiveness of civil litigation system has not been substantively realized,and the contradiction between institutional supply and litigation demand has not been completely solved.China’s litigation system and market base can provide a good environment for the system.Therefore,China has the necessity and feasibility of introducing the Third-Party Litigation Finance system.The construction of the system should start from two dimensions.At first,several core issues must be resolved,including accepting it in legislation,determining the scope of application and disclosure obligations,and prohibiting the control of litigation.The second is to establish a regulatory mechanism that conforms to the status quo of China’s litigation financing market,including implementation of record registration management,constructing an investor supervision system,and establishing an irregular behavior regulation rule. |
