First, what is the nature of civil litigation costs? What kind of legal relationship does it reflect or contain?
2. What standards should be adopted for the collection of civil litigation fees? What kind of evaluation should be made on the current collection standards?
First, the legal nature of civil litigation costs
Civil litigation expenses refer to the expenses that the parties should pay and pay according to law in civil litigation. Payment reflects the relationship between the parties and the state, while payment emphasizes the payment of money or money, which may occur between the parties and the state, between the parties and the third party. Some scholars believe that civil litigation costs only refer to "the expenses that the parties should pay according to law in civil litigation", which is inaccurate. In modern Chinese, payment means "delivering a certain amount of money or kind to the government or public organizations." Limiting the civil litigation expenses to the expenses paid by the parties actually covers up the rich and varied legal relations contained in the civil litigation expenses system. Of course, the author admits that the relationship between the parties and the state does occupy a dominant position in the legal relationship contained in civil litigation, and it plays a decisive role in the nature of civil litigation expenses. However, we can't deny the other relations contained in the civil litigation fee, and their influence on the nature of the civil litigation fee can't be ignored.
1. National civil litigation costs
As far as the relationship between the parties and the state is concerned, the cost of civil litigation has the nature of state cost. We know that the cost of civil litigation can be divided into two kinds in theory, namely "judgment cost" and "party cost". The former is the expenses required for court proceedings, including the fees for accepting cases (also called application fees) and the fees other than the fees for accepting cases (Article 107 of the Civil Procedure Law), while the latter is the expenses required for litigation by the parties. The so-called "national civil litigation fee" here refers to the referee fee.
The establishment of civil procedure aims at protecting the private rights of the parties, which has little to do with the national interests. The trial conducted by the court in civil litigation is a special service provided by the state for the parties to the dispute. Of course, the expenses incurred in this respect cannot be borne by the state finance, that is, the state taxpayer, like criminal proceedings. Therefore, the legislation of various countries adopts the principle of compensation for the ruling fee in civil litigation, and the ruling fee must be borne by the parties. On the one hand, litigation, like other social activities, needs to charge a certain fee to show the beginning of the procedure or the seriousness of the subject's implementation. On the other hand, judicial institutions need to make corresponding material expenditures to solve civil disputes. Therefore, the award fee is also a fee that both parties must pay.
The nature of the state-charged award fee reflects the relationship between the parties and the state in public law when paying the award fee, in other words, it is the simple obligation of the parties in public law to bear the award fee. If the parties fail to fulfill this obligation, it will have a series of adverse consequences, especially the exercise of the parties' right to appeal may be hindered. Because the litigant's right of action in civil litigation is directed at the state, it is a public right to ask the court to use judicial procedures to solve civil disputes. If the parties fail to fulfill their obligation to pay the award fee, the state has no obligation to conduct a trial. Therefore, paying the ruling fee should be one of the conditions for the parties to start or continue the lawsuit. In Taiwan Province Province of China, the litigation fees paid by the parties to the "national treasury" (that is, the case acceptance fee) are the litigation elements of prosecution or appeal. If the plaintiff or appellant fails to pay the case acceptance fee at the time of prosecution or appeal, the court may reject the prosecution or appeal on the grounds that the prosecution or appeal is illegal. Chen Jinan, a scholar in Taiwan Province Province, believes that paying the case acceptance fee is a litigation requirement for prosecution or appeal, while paying other referee fees other than the case acceptance fee is not a litigation requirement. When the parties fail to pay this fee, the court may not dismiss the lawsuit or appeal on the grounds of violating the law, but only refuse to execute the litigation act that should be executed according to this fee. For example, if the appraisal fee is not paid, the court may not conduct the appraisal.
Although the Civil Procedure Law of Chinese mainland does not regard the payment of adjudication fees as one of the elements of litigation, Article 13 of the Measures for Litigation Fees of People's Courts (hereinafter referred to as the "Measures for Fees") stipulates that if the plaintiff, counterclaim and appellant fail to pay the litigation fees in advance, they shall be treated as automatic withdrawal. The Supreme People's Court pointed out more clearly in 1994 "Reply on Asking for Instructions on Two Legal Costs": "After the plaintiff files a lawsuit or the parties file an appeal, it is a prerequisite for the people's court to accept the case according to the regulations. If a party fails to pay the case acceptance fee or appeal fee, or fails to pay the case acceptance fee or appeal fee in full, and applies for deferral, reduction or exemption, the people's court will not accept the case and the case will not enter the proceedings. " Judging from the above judicial interpretation, it is obvious that the Supreme Court has taken the payment of the case acceptance fee or the appeal fee as the litigation elements of prosecution or appeal. The judicial interpretation of 1994 is more scientific in dealing with the court fees for cases not paid in advance, because the court either refuses to accept or refuses to accept the lawsuit or appeal that does not meet the litigation conditions, and cannot "automatically withdraw the lawsuit" like the charging method of 1989. According to the principle that the new law is superior to the old law, the people's court should give priority to the judicial interpretation of 1994. However, there are still two shortcomings in the judicial interpretation of 1994: 1 does not stipulate that the people's court can solve the problem of not paying the case acceptance fee in advance by dismissing the prosecution (or appeal). In the trial practice, the filing department, the judicial organ and the financial department of the court are separated. The filing department is responsible for accepting the case, and the financial department is responsible for charging the case. The time for filing a case is different from the time for charging, and the case is often filed first and then charged. After filing a case, the filing department shall fill in a written notice requesting the plaintiff to pay the acceptance fee in advance in the financial department of the people's court and hand over the case to the relevant court. After the court accepts a case, if the party concerned fails to pay the case acceptance fee in advance or in full within the time limit specified in the notice of the court, the judicial organ of the people's court shall make a ruling rejecting the prosecution (or appeal). At this time, it is unrealistic to ask the court not to accept the case. 2. There is no provision that the parties cannot appeal against the ruling of not accepting or dismissing the prosecution. Article 140 of the Civil Procedure Law stipulates that if a party refuses to accept or rejects the prosecution, he may appeal. However, the court's decision not to accept or reject the prosecution because the parties have not paid the case acceptance fee in advance will not have a substantial impact on the parties' right to appeal. Once the client has raised enough legal fees, he still has a chance to get judicial protection. Therefore, it is not necessary to give the parties the right of appeal against this ruling of not accepting or rejecting the prosecution.
Even if the above two shortcomings are made up, the judicial interpretation of 1994 is not impeccable. After all, it is only a judicial interpretation, which is far less effective than the civil procedure law and fundamentally conflicts with the current civil procedure law in content. According to the Civil Procedure Law, as long as the plaintiff's lawsuit meets the statutory conditions, the court "must accept it"; The court's ruling of inadmissibility is limited to legal matters, and paying legal fees in advance is not a legal condition for prosecution, nor is it a legal matter of "inadmissibility". Therefore, in the judicial interpretation of 1994, the Supreme Court regards accepting the first case as one of the litigation requirements, which is a revision of the current civil procedure law. Although this amendment is not inappropriate, it is substantial. The author believes that there are many ways to solve the above conflicts, and the more practical way is to put the right to make rules on litigation expenses under the National People's Congress and its Standing Committee. In the German-Japanese legal system, the litigation fee rule is a separate law, which is the legislative authority of Congress. China Taiwan Province Province has also enacted a special law on civil litigation costs. The purpose of entrusting the rules of civil litigation expenses to the legislature is to improve the effectiveness level of the rules of civil litigation expenses and obtain the same legal effect as the civil procedure law. Moreover, because the law of civil litigation expenses is a special law of civil litigation law, the special law takes precedence over the common law, and the law of civil litigation expenses takes precedence over the civil litigation law, so the rules of civil litigation expenses will not conflict with the civil litigation law. However, in China, since 1984, the right to make litigation fees has been monopolized by the Supreme People's Court. The Supreme People's Court has formulated two methods of litigation fees in 1984 and 1989, and has continuously expanded and refined the above two methods by responding to the request of lower courts and issuing supplementary provisions. As a provider of public services, people's courts have no special interests and should not enter the market for exchange. The Supreme People's Court's sharing of the right to make rules on litigation fees will make the court put itself in an inappropriate position and participate in the market operation, thus generating an irresistible impulse to make profits and consciously or unconsciously treating civil litigation cases as the "cash machine" of the court. Moreover, the Supreme People's Court's exercise of the right to set litigation costs is only a factual act, and there is no clear legal basis, and there is no clear authorization in the current civil procedure law. Therefore, there is not much legal obstacle for the National People's Congress and its Standing Committee to recover this power.
Payment of other referee fees other than the case acceptance fee is generally not regarded as a litigation element. Other award fees can be paid in advance or by the court. Specifically, which referee fees are paid in advance by the parties and which referee fees are paid in advance by the court, this issue is not involved in the judicial interpretation. Considering the influence of paying the referee fee on the parties' exercise of litigation rights, the situation of advance payment should be clearly defined when formulating the litigation fee law in the future. In addition, since it is the obligation of the parties in public law to bear the adjudication fee, when the parties pay the adjudication fee other than the case acceptance fee in advance, they should also go to the financial department of the court, and the financial department will issue a unified receipt for the parties. The fees charged by a judge directly to the parties are not refereeing fees, and the judge has no right to directly charge the parties the fees related to handling cases.
There is no dispute that the referee fee is a national fee, but is it of a tax nature? Many scholars in China believe that the case acceptance fee is also called "litigation tax" and has the nature of tax. Taxation not only comes from the demand of national fiscal revenue, but also has the function of regulating social behavior. The case acceptance fee reflects the role and function of taxation. Charging acceptance fees can not only increase fiscal revenue, but also curb excessive litigation. If all the fees paid by the parties to the case are turned over to the finance and included in the government budget as budget funds, and the fees paid by the parties are stamped with tax stamps, then in this case, it can be considered that the fees for accepting the case have the nature of taxation. In Japan, the case acceptance fee is litigation tax. However, China's case acceptance fee is not taxable, at least for now. All the ruling fees, including the case acceptance fees, shall be shared by the Court of Appeal, the High Court and the Supreme Court respectively. Among them, the high court or the intermediate court of a city under separate state planning may appropriately concentrate a part of the legal fees to purchase the necessary business equipment in a certain proportion, and appropriately subsidize the business expenses of the courts in poor areas. The Supreme Court may appropriately concentrate part of it on the unified procurement of necessary business equipment of the national court system and appropriate subsidies for the business construction needs of courts in poor areas. The rest shall be turned over to the local finance or deposited in the "special account for the management of extra-budgetary funds" of the local finance department. Based on well-known reasons, the phenomenon of "leakage" in the distribution of adjudication fees is inevitable, and all departments and court staff within the court will undoubtedly become the beneficiaries of "leakage". It can be seen that it is somewhat funny to advocate that the acceptance fee of civil litigation cases in China is tax-based. However, from the perspective of putting an end to judicial corruption and safeguarding judicial justice, it is also a good policy to change fees into taxes. The reform of "two lines of revenue and expenditure" since 1998 seems to have taken a step towards changing fees into taxes. However, the prospect is not optimistic, because the "two lines of revenue and expenditure" legal fee management policy only prohibits the court from using the income from fees, fines and confiscation of property for its own benefit, which does not mean that the court must pay all the legal fees of the Shanghai Stock Exchange in full. Judging from the above situation, the nature of court adjudication fees in China can only be recognized as state fees, but not as litigation tax.
Second, compensation for civil litigation costs.
The compensation of civil litigation costs reflects the relationship between the parties. Although it is the public law obligation of the parties to the country to pay the litigation costs, it does not rule out the fact that the litigation costs are ultimately borne by the parties. When a party files a lawsuit or appeals, it shall, of course, pay the case acceptance fee or other judgment fees in advance according to law. In the course of litigation, both parties need to invest some expenses for the implementation of litigation. However, before the court makes a judgment on the legal fees, the burden of the legal fees of both parties is only temporary. After the court makes a judgment, the parties shall share the litigation costs according to the contents of the judgment. The party who should bear the litigation costs is obliged to repay the litigation costs incurred by the other party. However, this claim for repayment is caused by litigation, not the subordinate right of entity relationship, and has nothing to do with the claim for tort damages. Only the judgment of the lawsuit determines its burden and amount, and no separate prosecution or counterclaim is allowed.
The compensation of civil litigation costs reflects the rights and obligations between the parties arising from the judgment of court litigation costs, that is, the right to demand repayment and the obligation to repay. Moreover, the basis of the parties' claims is not the substantive legal relationship, but the litigation relationship. When making a judgment including the burden of litigation costs, the winning party can't ask the court to refund the litigation costs paid in advance, but apply to the court to enforce the property of the losing party to offset the litigation costs according to the effective judgment and the receipt of litigation costs. Civil law scholars often don't understand this. Civil law scholars believe that the court itself is faced with the dilemma of rational explanation by asking the winning party who paid the legal fees in advance to demand the legal fees from the losing party. There are three puzzles: (1) Is it a public law relationship or a private law relationship between individuals and the government to pay legal fees? (2) If it is a private law relationship, the behavior of the court constitutes the transfer of creditor's rights. Does this transfer of creditor's rights apply to the provisions of the General Principles of Civil Law on the transfer of creditor's rights? Can we argue through litigation? (3) With the effective judgment, what are the reasons for the formation of new creditor's rights and debts between the parties with the burden of litigation costs? Is the legal fee itself an independent "litigation object"? These problems really touch on the basic theoretical issues of civil litigation costs. Only by answering these questions can we point out the direction for judicial practice and provide necessary theoretical support for the legitimacy of judicial practice.
The above questions of civil law scholars are not unreasonable. For a long time, Chinese civil law scholars have not paid enough attention to the basic theory of civil litigation costs, but only admitted in theory that paying civil litigation costs is the public law obligation of the parties to the country, but they are vague about the payment procedure, the determination of the amount of litigation costs and the relief methods of the parties who are dissatisfied with the litigation costs, especially the lack of a minimum explanation of the repayment rights and obligations formed by the effective judgment between the parties. These are the real reasons for the confusion of civil law scholars. When a party pays the judgment fee in advance, there is a public law relationship between him and the court. However, after the court made a judgment on the legal fees, this public law relationship was transformed into the relationship between the parties about the burden of legal fees, that is, the new creditor-debtor relationship, and the driving force for the transformation came from the effectiveness of the court judgment. The judgment of the court can not only confirm the disputed substantive legal relationship between the parties, but also change the original legal relationship and produce new legal relationship. There is a view that the court takes the case acceptance fee paid in advance by the winning party as the content of enforcement, in fact, it forces the parties to form new debts by virtue of judicial power-this view really touches the essence of the problem if it is not from the standpoint of critics.
All kinds of chaos in the practice of charging by people's courts have aggravated people's cognitive deviation. In the early 1950s, courts in various parts of our country had levied litigation fees on plaintiffs, but according to the judgment, the litigation fees should be borne by the defendant and should be stated in the text of the judgment. After the judgment, the plaintiff directly seeks compensation from the defendant, and if it fails to perform, it may request execution. The method of returning the fees collected to the plaintiff and then charging the defendant should never be adopted. However, after 198 1 resumed the system of charging litigation fees in China, the charging procedure changed locally: after the trial of a case, the judge informed the parties who should pay the litigation fees to pay the litigation fees in the financial department of the people's court, and at the same time informed the parties who should not bear the litigation fees but paid them in advance to collect the prepaid litigation fees in the financial department of the people's court. After entering the 1990s, the procedure of charging legal fees by the court was rather confusing. The above two ways coexist, but the first way is the main one.
The compensation for civil litigation costs is not only related to the "referee fee", but also related to the "party fee". The expenses incurred by the parties in carrying out litigation acts shall also be borne by the losing party. Because for the obligee, if the cost of realizing the right is too high and he has to pay the cost himself, then litigation is not an ideal choice for him. From the perspective of protecting the interests of creditors, it is necessary to stipulate that the losing party should repay the fees paid by the other party. Of course, this can only be limited to the expenses incurred by the other party (that is, the winning party) in implementing due process. No matter what the outcome of the lawsuit is, the winning party can not only claim to repay its own expenses, but also the other party's expenses. However, the problem is that the scope of civil litigation costs is not very certain in China's litigation costs, but it is roughly divided into six categories: (1) case acceptance fees; (2) Fees for inspection, appraisal, announcement and translation; (3) Transportation expenses, accommodation expenses, living expenses and lost time for witnesses and expert witnesses to appear in court; (4) Preserving the application fee and actual expenses; (five) the cost of executing the judgment, arbitration and mediation agreement; (six) other expenses that the people's court considers should be borne by the parties. In a judicial interpretation of 1999, the Supreme Court made a number of restrictions on "other expenses", mainly including: (1) the parties to non-property cases should bear the actual expenses such as inspection, appraisal, announcement and translation; (2) It is really difficult for the parties in property cases and administrative cases to collect and provide relevant evidence by themselves, and the court considers it necessary to investigate and collect evidence in different places and mediate in different places according to the standards set by the state. Generally speaking, when the Supreme Court lists the scope of civil litigation costs, it seems that it intends to limit litigation costs to "judgment fees" and exclude "client fees". However, Article 25 of the Measures for Charges also stipulates that the expenses arising from the improper litigation behavior of the parties shall be borne by the parties, regardless of whether the parties who commit improper behavior lose the case after the litigation ends. Judging from the provisions of this article, "party fees" seem to be included in the legal fees. Therefore, the Supreme Court's enumeration of the scope of civil litigation fees is contradictory to the specific provisions. In view of the fact that the Supreme Court is formulating a new method of litigation fees, I hope that the new method can clearly include the client's fees in the scope of civil litigation fees.
As mentioned above, the compensation of civil litigation costs is based on litigation relationship, not on the occurrence of contracts or tort in substantive law, so it is generally not appropriate to give the parties a litigation way to ask the other party to repay the costs. However, in the case that "client's fees" are not included in the scope of civil litigation fees, if the parties are allowed to bear the expenses arising from their participation in litigation activities, I am afraid it is not conducive to safeguarding the litigation rights of the parties. Therefore, the parties should be allowed to take the tort as the cause of action and the expenses paid in the lawsuit as the factual damage, and demand the abuser to compensate for his own travel expenses, lost time and communication expenses. They have to travel around for no reason, investigate and collect evidence, and hire lawyers. It can be seen that the abuse of litigation right system is actually an alternative means in the case that the law does not clearly stipulate the burden of "party fees", which has roughly the same function as the burden of "party fees". Of course, directly determining the cost burden of the parties in the judgment of this case is more conducive to protecting the interests of the parties, reducing litigation costs and reducing the difficulty of proof than asking the other party to compensate for the losses. The author believes that in the future, when perfecting the legislation of civil litigation expenses, we should first consider the implementation of the right of recourse based on litigation relationship, and try not to use the abuse of litigation right system to solve the cost problem of the parties.
In order to realize the right of compensation based on litigation relationship, it must be clear that the basis of bearing civil litigation costs lies in litigation relationship and court judgment, not tort in civil law. After the end of civil litigation, the court usually determines the burden of litigation costs in the final judgment, which is the judgment of litigation costs. Generally, the judgment of litigation costs only needs to inform the obligor who bears the expenses and the proportion he should bear, and it is not necessary to determine the amount that the obligor should compensate others' expenses, so that the litigation can be ended quickly. Of course, if the court considers it appropriate, it can also specify the amount of litigation costs that should be compensated in the judgment of litigation costs. If the court fails to determine the amount of costs in the judgment of litigation costs, the person entitled to claim compensation may apply to the Court of Appeal for a ruling after the judgment is enforceable. If both parties share the litigation costs, the court shall order both parties to submit a cost calculation and a certificate explaining the amount of the costs within a certain period of time before making a ruling. When the court makes a ruling to determine the amount of litigation costs, it shall determine that the expenses that both parties should bear have been offset in equal amount, and then determine that one party should compensate the other party for the difference. In many judgments of second instance made by the Supreme People's Court, this way of exercising and calculating repayment right has been recognized and practiced. For example, in the case of "Xiamen Special Economic Zone Electromechanical Service Company filed an appeal due to the dispute over the payment of import contract", the Supreme Court ruled that "the acceptance fee for the first instance of this case was 654.38 yuan +0.542 million yuan, and the acceptance fee for the second instance was 43.375 yuan. 47 yuan and the appellant Xiamen Special Economic Zone Electromechanical Service Company each bear 70%, accounting for 465.438+0. 1.56.83 yuan. Whereas the acceptance fee of the first instance case was paid in advance by Xiamen Branch of Shen Ming Trading Company; The second-instance case acceptance fee was paid in advance by the appellant Xiamen Special Economic Zone Electromechanical Service Company, so the appellant Shen Ming Trading Co., Ltd. Xiamen Branch should refund the appellant Xiamen Special Economic Zone Electromechanical Service Company the case acceptance fee of 2,265,438 yuan +08.64 yuan. " In addition, in the judgments of "Zhongfang Group Harbin Real Estate Development Company v. Commercial Housing Sales Agreement Dispute Case", "China Industrial and Commercial Bank Xiaogan Xiaonan Sub-branch and China Industrial and Commercial Bank Xiaogan Sub-branch v. Government Bond Repurchase Contract Dispute Case" and other cases, the Supreme Court has repeatedly confirmed the right to recover litigation costs between the parties.
Sanctions for civil litigation costs (? )
In the theory of civil litigation, there used to be a theory of "litigation fine" about the nature of litigation costs, which regarded the litigation costs paid by the parties as the punishment of the state for the losing parties. Many scholars of civil procedure law in China still insist on the sanction of litigation costs. In their view, because the litigation costs are generally borne by the losing party, the losing party should be responsible for the losses caused by its own actions. In this sense, bearing the litigation costs is an economic sanction to the illegal parties.
The author disagrees with the theory of "sanction" or "litigation penalty". In my opinion, it doesn't mean any punishment or sanction for the state to collect legal fees (that is, ruling fees) from the parties. The state only collects remuneration for providing services to the parties according to law. The fundamental mistake of "sanctions theory" lies in denying the legitimacy of the parties seeking judicial organs to solve civil disputes, denying that the parties seeking judicial protection are a kind of litigation right of the parties, and belittling and limiting the behavior of the parties spending money to buy judicial services as a negative thing, which will inevitably suppress the public's litigation needs and mislead the public to have a negative evaluation of the dispute itself. In addition, it is extremely unfair to regard the case acceptance fee as an economic sanction to the losing party. "losing party" is just a term in procedural law, which does not necessarily mean that the parties do not enjoy substantive rights. The possible reason for losing the case is the procedural factors such as not providing enough evidence to prove its claim. Therefore, the word "losing party" itself does not contain any moral criticism. If insisting on paying litigation fees is a sanction to the losing party, it will undoubtedly put the losing party in a very unfavorable moral position: people will involuntarily associate the losing party with the perpetrators, misbehaving people, shameless people and so on-this is obviously inappropriate.
Of course, in ancient society, the occurrence of civil conflicts itself was regarded as illegal. In this case, the early litigation acceptance fee may have a certain sanction nature, which the author does not deny. For example, the slavery lawsuit in the Western Zhou Dynasty in China is similar to the conflict lawsuit of today's civil disputes, and the acceptance fee is "stabbing an arrow" (a certain number of arrows), while the litigation fee is "Jin Jun" (30 Jin of copper), which somewhat reflects different sanctions for different conflicts. In ancient Rome, court fees were paid by oath. Article 1 of Table 2 of the Twelve Copper Tables Law stipulates: "If the subject matter of litigation exceeds 1000, it will be paid 50, and if the subject matter is less than 1000, it will be paid 50, regardless of its property." It can be seen that the expenses paid by ancient society (usually physical property) reflect the fact that conflicts are subject to material sanctions.
The author's opposition to the "sanctions theory" does not mean denying that the court has the right to order the parties who commit misconduct to pay a fine to the court according to law. In civil proceedings, if one party maliciously obstructs the civil proceedings, the court has the right to take some compulsory measures, such as fines and detention, to ensure the smooth progress of the proceedings. China's people's courts have the right to impose fines on the parties according to the Civil Procedure Law, and German law also allows the courts to order the delayed parties to pay the fines to the courts. However, the fine penalty is completely independent of the burden of litigation costs, and the two cannot be confused or replaced with each other.
Second, the charging standard of civil litigation fees
As far as "client's fees" are concerned, there is no question of collection. The parties only need to submit a cost calculation to the court for review and adjudication. The judgment fee is paid by the parties to the court, and the amount paid is subject to the policy consideration of legislators in many cases, that is, legislators often take the judgment fee as a cost policy to adjust the number of litigation cases, and through it, they can reasonably influence the litigation motives of the parties. The general guiding ideology of legislators is that the collection of adjudication fees should not only ensure the realization of the right of appeal given to the parties by the Constitution and the procedural law, but also take into account the workload of the court. In addition to the above policy factors, the following factors that affect the amount of the award fee must be considered when determining the standard of the award fee, namely, the nature of the award fee, whether the case is a lawsuit or a non-lawsuit event, and whether it is a property case or a non-property case.
One of the bases for determining the charging standard: the nature of the award fee.
Different understanding of the nature of the referee fee is directly related to the determination of the amount of the case acceptance fee, because the referee "the nature of the fee is an important rational basis for defining its due amount". According to the nature of state fees, the collection of case acceptance fees must adapt to the financial level of the country and generally reflect the overall effectiveness of financial behavior; As a national expense, its amount should also take into account the complexity of litigation and the general ability of the public to pay. The cost of accepting a case should not exceed the general ability of the people to pay, so as not to keep a considerable number of people out of the court. Because the principle of compensation is adopted in civil litigation, the case acceptance fee is regarded as the reward of judicial proceedings. Accordingly, the case acceptance fee must be related to the actual progress of litigation, especially the difficulty of concluding the case (not only depending on the size of the disputed object). Generally speaking, in modern society, although there are great differences in the specific amount among countries, the basis for determining the case acceptance fee is basically the same. Almost all of them are determined by comprehensively considering the above situation, referring to the general standards of social life and obeying the consideration of humanitarian principles.
However, if the case acceptance fee is regarded as an economic sanction to the losing party, the determination of its amount must take into account the subjective fault of the losing party in improper litigation and the damage consequences caused by the losing party's improper behavior. In other words, the amount of the case acceptance fee depends on the subjective fault of one party when suing and the objective consequences caused by the litigation process to the other party. However, when accepting a case, the court cannot predict who is right or wrong, nor can it predict the harmful consequences of the lawsuit. In fact, this makes it impossible for judges to determine the size of the acceptance fee when accepting cases. Even if the specific cost is given, it can only be the result of subjective speculation by the filing judge. Therefore, the author believes that it is not advisable to understand the nature of the acceptance fee from the perspective of economic sanctions, which will open the door for judges to collude with each other to determine the amount of the acceptance fee.
Second, the basis for determining the collection standard: the litigation nature and non-litigation nature of the case.
Civil cases are generally divided into litigation cases and non-litigation events. Litigation case is a controversial case about substantive matters such as the existence of rights in substantive law. Non-litigation event refers to a case in which an interested party requests the people's court to confirm the existence of a certain fact without a civil dispute, so that a legal relationship occurs, changes or disappears. Among them, litigation events should be handled according to litigation jurisprudence, and non-litigation events should be handled according to non-litigation procedures.
In modern society, the application scope of non-litigation events and non-litigation procedures tends to expand, including not only the traditional relationship with people.