Judicial Judgement On Expense In Civil Litigation In China

Since the performance of "Measures on the Payment of Litigation Expense"(hereinafter referred to as "Measures") enacted by the State Council on April1st,2007, it further standardizes the collection and management of litigation expense, reduces the cost of litigation in civil cases, and plays an active role in safeguarding lawful rights for the litigant through lawsuit means. However, the following three major problems still exist in judicial practice of civil litigation expense:1) the amount of acceptance fees for cases of the same kind is various;2) the litigants bear different cost of litigation for the same kind of cases, on some occasions, the allotment of the expense appears legitimate but unreasonable;3) the remedy system of litigation expense performs practically no function.The improperly performed judicial discretion of litigation expense at least results in three respects below:1) jeopardize the litigant’s rights;2) disturb regular lawsuit proceedings; destruct the judicial authority. The actual cause can be interpreted as unavoidable legislative limitations and judicial randomness which can be normalized through proper ways.The performance of judicial discretion in civil litigation expense is not only certain claims which can remedy legislative limitations but also basic requirements applicable to judicature. How to normalize it is the focus of this thesis. It is inevitably restricted by legislative spirits and legal principles, specific provisions on laws and regulations, the quality of judges, and proceedings. Moreover, the remedy procedure needs to be improved to rectify the improperly performed judicial discretion.Based on the above principles, this thesis enumerates several solutions for the reference of judicial practice according to the performance of judicial discretion in litigation expense.1) The amount of litigation expense can be set from a low level.2) How to bear the litigation expense in the following conditions can be analysed respectively:the expense of appraisals, announcements, and translations; the expense that partially lawsuit winner or partially lawsuit loser has to bear; the expense allotment of colitigants; the expense of divorce cases; the expense of mediation cases.3) Under special circumstances, the litigation expense can be alloted flexibly by law. Before confirming the allegation of the plaintiff, the approval part of the accused cannot be treated as the losing part. Meanwhile, after the plaintiff sues, the part that the accused voluntarily implements cannot be regarded as the one that the plaintiff loses and the expense produced by the litigant who maliciously delays the lawsuit. If the litigant delays the lawsuit intentionally or through negligence, he/she will have to pay the additional expense of traffic, accommodation, living and delay compensation to the witness, the appraiser, the translator, and the adjuster.