Study Of The Cost Of Litigation Guarantee System

The system of security for costs comes from the unwritten law in middle ages. This system developed greatly after coming in Britain from fee continent This paper combining fee materials of judicial practices and laws of Britain and America, wife fee study in this field in China, has a unique view on fee system of security for costs particularly. At fee end of fee paper, fee author gives us a suggestion how to promote fee system of security for costs. This paper has five parts besides foreword and epilogue.Part 1 fee origin and development of fee system of security for costs. At this part, the author focuses on fee common law in Britain. At fee late of 18 century, other European courts began to order foreign plaintiffs to provide security.~① At this part, fee paper first investigates security for costs in continent law, then in common law, at fee end in China. In China, the domestic law proclaimed fee foreign plaintiffs to provide security, but now it is regulated by fee bilateral judicial assistance treaty.Part 2 fee necessity of fee system of security for costs to exist At this part, fee author first studies fee necessity in theory, and then in practice, especially in fee judicial practices.Part 3 fee applying essentials. This part is fee core of fee paper. The author studied the subject, counter claim, appellate jurisdiction, none legal process and exceptional regulations. All fee factors should be considered: ownership by a non-domiciliary plaintiff of attachable property in the field of fee court, the likelihood of success on the merits, fee presence of a co-plaintiff who is domiciled in the place of fee court, fee probable length and complexity of fee litigation, the conduct of fee litigants, and fee purposes of fee litigation, etc.. The key point to consider fee said factors is fee difficulty to enforce fee fees. The paper also inquisite fee counter claim problem. Where a court is faced wife an application for security for costs from a counterclaiming defendant, its approach will be as follows: Where fee defendant admits fee plaintiffs claim but makes a cross-claim, in otherwords counterclaims for matters arising out of a wholly different transaction, an application for security for costs will be refused; Where the defendant raises a substantive defence to the plaintiffs case, the application should be considered on the basis of the guidelines; Where the defendant raises a set-off and counterclaim, the court will scrutinize the pleading to see whether it is a cross-claim or a set-off. If it is satisfied that the pleading raises a set-off it should again consider the application on the basis of the guidelines above.Part 4 the operation mechanism of security for cost Tlie process will start from the litigant filing an application or the court directly scrutinizing according to its powers. The guarantor may be the litigant himself none litigant or others. The method of security may be cash, pledge, and other forms. The scope of security should be judgement fees, other costs including attorney fees. The order of security should be appellated.Part 5 the suggestion to promote the institution of security for costs in China. At this part, the paper gives us a clear suggestion to perfect the law system in China on the issue about security for costs.This paper, which focuses on the subject of security for costs in common law system, brings us a clear picture of the history, development, the legal practices and the newest ideas of cost bond in common law system, especially in Britain and the United States of America. The author wants to promote our development of the legal advancement to the procedural mode, especially in the costs field.