Litigation Cost Shift System

In recent years, with increasing litigation cost and other concealed cost, people have to pay considerable expenses to file a lawsuit, which seriously influence people's confidence to safeguard their rights and achieve justice through litigation. It is easy to conclude that litigation cost has become a social focus. Reducing or shifting litigation cost to realize maximum efficiency is a subject of practical significance in lawsuit doctrine study.For the topic of litigation cost shift system mentioned by the author, abundant studies have been made on losing party responsibility, legal aid and insurance against litigation, while there is only fragment analysis instead of systematic study on litigation cost shift in domestic, and in overseas only one shift theory published by Japanese scholar Tanase Takao. Therefore, the study of litigation cost shift is of high significance and urgency.Started by explanation of concepts related to litigation cost and introduction of litigation cost shift theory by Tanase Takao, this article describes three main systems on losing party responsibility, legal aid and insurance against litigation. As conclusion related to practical conditions of our country, this article points out that litigation cost shift is inevitable and necessary, and proposes to establish a litigation cost shift system adapted to practical conditions of China.The article adopts comparison study method. It compares our system with similar systems abroad and then explores the advantage and disadvantage of foreign systems as reference for our system reform. On the insurance litigation system we don't have, comparison is more necessary to analyze its reasonability for our reference to establish our own system.In addition, this article also adopts economic analysis method. Cost is the core concept of economic analysis method, while analysis of cost on litigation law perspective is uncommon. To better study litigation cost shift system, we should first study the concept of litigation cost, which is tightly attached to the economics area. Thus, it is necessary to introduce economic analysis method.This article counts over 30,000 words, and is divided into five parts. First part illustrates the theoretical framework of litigation cost shift system. It first defines concepts related to litigation cost, and introduces the two components of litigation cost in our country. It states that the emphasis of this article is the economic cost of civil litigation. Then it explains the key word of "shift", followed by introduction of litigation cost shift theory by Tanase Takao, to analyze the process of litigation cost shift. Through further analysis of two shift rounds, the article summarizes three important systems on losing party responsibility, legal aid and insurance litigation.The second part focuses on the burden of The losing party system. The article sticks to the theoretical basis. It refers to related provisions in laws and regulations, and judicial practice of China, and then investigates whether losing party undertaking litigation fee exists in practice and whether the court supports losing party's responsibility for attorney fee. Then it discovers the defects of this system. Through comparison study, it analyzes the differences of principle, spirit and advantage on this system among different countries, with emphasis on losing party's responsibility on attorney fee both in provision and practice perspectives.The third part describes the legal aid system. The author first analyzes the principle and spirit of this system, and then introduces the basic situation of current legal aid system in China. The author compares legal aid system in different countries and summarizes the dilemma in China and finally proposes improvement on existing system .The fourth part concentrates on insurance litigation. Since insurance litigation system has not been established in China so far, reference to other countries' practice should be made to analyze the importance and feasibility of adopting this system in China. In this part, the author makes detail review on insurance litigation legislation and practice in France, Germany and UK to display multiple features of this system to readers, and then summarizes the success conditions of this system in above mentioned countries. The author then explores the significance of this system to China and studies its theoretical foundation and value of existence. Since it's a totally new system for China, obstacles are inevitable in the transplant process. Consequently the author analyzes the obstacles may confronted in order to clarify the objective of problem solving. The author introduces related concepts in insurance area for better understanding and shows clear direction for reference to other countries' litigation system and establishment of our own system.The fifth part designs a plan of litigation cost shift system. Based on existing theory and mechanism and reference to Tanase Takao's model, combined with analysis on the three most important systems, the author proposes detail process of litigation cost shift in China. This is also the creative of this paper.