论中国民事案件诉讼费用预交制度的立法修正

Abstract

After the founding of the People's Republic of China, China's litigation cost system has gone through three stages: free judgment, individual charge and universal charge. In civil action, litigant should pay lawsuit cost in advance when they sue, and then the final actual cost of lawsuit should be decided based on the adjudicates result. The current system of pre-payment and refund of litigation costs has multiple nodes of payment by parties and refund by courts, which virtually increases the litigation costs of parties and judicial costs of courts. The narrow scope of judicial assistance makes it difficult for legal person organizations, especially private enterprises, to exercise their litigation rights in accordance with the law and affects the proceeding of litigation procedures. At the same time, the related provision of civil litigation expenses system is inefficient and rate of litigation cost is very high. Therefore, it is necessary to make appropriate legislative amendments to the system of pre-payment of litigation costs and establish a post-litigation payment system. This system is in the same line with the principle of “beneficiary sharing”, and it will also play the role of sanctifying civil illegal ACTS and reducing the burden of taxpayers and state financial expenditure. It helps to protect the litigant's right of action and save human resources, and will provide more powerful judicial services and guarantee for the development of private economy. This system is to defer the collection of litigation costs to the end of the case, rather than promote the non-collection of litigation costs, which will not cause the loss of litigation costs. This system, still requiring the parties to consider the necessity of litigation, will not necessarily lead to the abuse of litigation parties. Admittedly, in the process of operation of this system, the people's court should fully fulfill the obligation of interpretation by informing the parties of the litigation risk and that they still need to pay the litigation costs according to the judgment results after the litigation, rather than not to pay the litigation costs. At the same time, in order to prevent negative impact on China's national sovereignty and economic interests, when the plaintiff in civil and commercial disputes involving foreign nationals is a foreign citizen, enterprise or organization, the system of advance payment of litigation expenses shall still be implemented.