On The Equitable Allocation Of Litigious Obligation

Litigious obligation has long been neglected in civil proceedings. Indeed, intraditional civil proceedings where the emphasis is laid simply on court intervention andindividual freedom, there is no tolerance of litigious obligation. From a theoreticalperspective, as the opposite of right and equivalent component of power，obligation hasfrequently been negated and excluded. Due to the overstress on the allocation oflitigious rights and judicial power, litigious obligation was neglected. The in-depth studyof litigious obligation theory has been perplexed by the tangle of litigious obligation andlitigious expense as well as the court’s obligation and authority.However, with the reform of and progress in civil procedure, the former extremesituation of authority principle or litigant principle has been replaced by the prevailingproper exercise of court authority under the premise of litigant autonomy. As a result,the structure of the subject in civil procedure has shifted from the litigant-courtrelationship to a tripartite relationship of the two parties and the court, and the sharing oflitigation liabilities has become all the more complicated due to the reallocation ofauthority. In this context, as the legal relationship in civil proceedings correspondinglychanges into the triangle formed by litigious rights, court authority and litigiousobligations, it is essential that the regulation of subject action in civil procedure beshifted towards a combination of liberal conferral and obligation binding. It is alsonecessary to “take litigious obligations seriously”, trying to make rational and equitableallocation of the obligations. From the experience of developed countries in theregulation of court authority in civil proceedings, the core is on the stress of courtobligations rather than liberal conferral on the basis of a respect for litigant autonomy.In view of the allocation of litigant obligations, the target is to protect the commonneeds of all subjects and to safeguard maximum behavior freedom for all parties.In this regard, the dualism thinking exhibited in the mere stress of litigant rightsand court authority should be discarded and should be replaced by an equal emphasis onthe allocation of these two core elements and on the fulfillment of litigious obligationand the ensuing synchronized equitable allocation of litigant and court obligations.Because of the essential attribute in civil litigation is procedural, the procedure shouldbe designed to promote rational and full intersubject negotiations and dialogue. In thissense, the value targets and role of obligation allocation in civil proceedings should beoriented towards making clear definition of the litigant’s obligations so as to provide prior guidance on litigant behavior selection through a fore knowledge and prediction ofcorresponding consequences, to ensure that litigious rights are rightly and fullyexercised to avoid any unreasonable one-sided confrontation and delay; drawing a clearline between the court’s authority and obligations to prevent misuse of right and act ofomission; compensating litigant’s capacity and correcting the disparity between the twoparties via court act and intervention on the basis of its obligations for greater equity andhigher efficiency of the litigation. Whereas, equitable allocation of the obligations isonly possible when both parties and the general public are equally protected, with theirrights given balanced consideration in the litigation, particularly when there is a demandfor “access to justice” in case of relative insufficient judicial resource. In China, there isstill great discretion when it comes to the exertion of court authority and litigant rightsare often not actualized. Against this backdrop, future reform should be oriented towardsa consolidation of the respect for litigant autonomy, the proper exercise of courtfunctions and the reasonable guidance and intervention on litigant action throughsynchronized proper allocation of the litigant and court obligations.