A Survey of Litigation Costs, Court Budgets and Access to Justice


The cost of a judicial system consists of mainly 2 parts. One is the public cost which is borne by the state in establishing the judicial system; the other is the private cost which is charged by the court such as litigation cost and lawyers’ fees which are borne by the parties.443 The functioning of the court system in a country is heavily affected by the burden of these costs. In economic terms, costs will affect the demand. The burden of the litigation cost of the parties will influence the decisions of the parties on whether or not to go to the courts for remedy under a certain constraint such as the probability of winning their case and enforcement of judgments. Additionally, delay and backlog will increase the price to the parties implicitly; consequently, people will react to this added cost by reducing their filings and not redress their grievances within the court system.444


Supra Note Jiangxi Province Legal Service Court System Civil Procedure 
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  1. 443.
    See Fu, Yu Lin, The Nature of Litigation Fees and the Burden of Litigation Costs, Peking University Law Review, Vol. 4, No. 1, 2001, pp. 239–243.Google Scholar
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    Schaefer, H.-B., „Kein Geld für die Justiz — Was ist uns der Rechtsfrieden wert?“, in DriZ, 1995, p. 461.Google Scholar
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    R.M. Dworkin, A Matter of Principle, Clarenden Press of Oxford, 1985.Google Scholar
  5. 449.
    Qi, Shu Jie, Research on Reform of Civil Procedure Law, Xiamen University Press, 2000, p. 371.Google Scholar
  6. 450.
    Case disposition fee or litigation fee is charged according to the amount of the claim, namely, the dispute value. The litigants must prepay the fee in each case. Judges can decide the proportion of the court fees borne by each party according to the liability in causing the disputes. This is similar to the Austria ZPO, see Hans Zeisel, Harry Kalven, Jr. and Bernard Buchholz, Delay in the Court, Little, Brown and Company, 1959, pp. 292, 293, 294.Google Scholar
  7. 453.
    In small claims it would not be economic to have lawyer’s engagement and to appeal, otherwise the costs would even be higher than the claims. This is also the case in German Civil Process, in which the costs could be even many times of the claims, see Franzen, Hans, Was kostet eine Richterstunde? In: NJW1974 Heft 18, p. 786.Google Scholar
  8. 455.
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    This example is based on the one presented by Fang, Liu Fang, Research on Litigation Cost, in: China Social Science, (3) 1999, pp. 141–142.Google Scholar
  10. 460.
    There are many cases with litigation fee over million Chinese Yuan. In the selective cases edited by the Supreme People’s Court, civil litigation is a very costly game. For some examples: the first example concerning a real estate dispute, a firm in Hainan province paid 0.6 million Yuan for Case Disposition Fee, security of title in the first instance and case-disposing fee in the appellate stage. The litigation was estimated to be 1.5 million Yuan taking the lawyers fee, traveling cost and other expenditure into account. In the second example concerning dispute of leasing contract, United Leasing Company paid 0.57 million Yuan as court fee to the trial court and appellate court respectively, besides, court fee for counter-claims was 241,059 Yuan. In the third case concerning bond business, the South Portfolio Company paid total amount of 999,440 Yuan to the trial and appellate courts for a simple case with a debt value of 27 million. Details refer to “Selective cases of economic disputes with appeal and retrial disposed by Supreme People’s Court”, pp. 331–335, 423.Google Scholar
  11. 461.
    According to statistics, more than 50% of the court orders relating to economic and contract issues cannot be executed and the creditors have no chance to be compensated even they win the cases. See Zhang, Wei Ying / Ke, Rong Zhu, “The adverse selection in civil litigation and its interpretation — an empirical study”, in (2) 2002 China Social Science, p. 31.Google Scholar
  12. 464.
    The Supreme People’s Court: “Reply to Questions about Litigation Fee”, 1994.Google Scholar
  13. 466.
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    For relevant arguments, see H.Y. Jia, H.Y. Li, “Improper way to absorb court fees from the winning party”, in People’s Court Press, on 07.01.1998; “Method of Reimbursing Court Fees, Reform in Le Qing Court”, in People’s Court Press, on 16.06.1998.Google Scholar
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    In: Selective Cases from People’s Court, 17th edition, pp. 77–83.Google Scholar
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    See “Investigation Report on Merger and Bankruptcy in Some Provinces and Cities (1996)” by the State Economy & Trade Department & Bank of China: in: Handbook for Optimizing Capital Structure in Cities for Test, China Economy Publication, 1996, p. 291.Google Scholar
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    Art. 8 of Regulation on Litigation Cost (1989).Google Scholar
  18. 484.
    Source compiled from China Law Year Book, 1995.Google Scholar
  19. 485.
    Hirto Miyake, Comparative Analysis of the Reform of Civil Procedure, Japanese Report, in Conference on Civil Justice in the Era of Globalization, Japan 1992.Google Scholar
  20. 486.
    Source: China Judicial Administration Year Book, 1999, China Law Press 2000, p. 579.Google Scholar
  21. 488.
    See Notification on Temporary Standard of Lawyers’ Fees to be regulated by the Local Administration, by the State Plan and Development Committee and the Ministry of Justice, 2000.Google Scholar
  22. 489.
    Regulation on Lawyers’ Legal Service and Fees in Fujian Province, on 1st April, 2002.Google Scholar
  23. 490.
    Xiamen Daily, ‘Today’s Focus’, p. 3, 22.08.2002.Google Scholar
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  25. 492.
    Investigation made by Gu, Zhao Sheng, Report from Lower Courts, in People’s Court Daily, on 14.03.2002.Google Scholar
  26. 494.
    The cost-saving policy of the state in judiciary with respect to lower budget and less personnel would endanger the quality of judiciary and cause a longer duration of civil process. See: Franzen/ Apel, Prozessaufwand bei Gericht und Anwalt — betriebswirtschaftlich und anschaulich — mit Folgerungen, NJW 1988, p. 1062.Google Scholar
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  28. 498.
  29. 499.
    The courts lacked 13.98 million Yuan to pay these costs. See Xue, Jiang Wu and Zhang, Yong Ling, An analysis and thinking of the problem of court budget, in People’s Judiciary (8) 1999, p. 39.Google Scholar
  30. 501.
    Supra Zhang, Yong Ling, An analysis and thinking of the problem of court budget, in People’s Judiciary (8) 1999, p. 39 note 499.Google Scholar
  31. 502.
  32. 506.
    Zhang, Wei Ping, Review on Judicial Reform, China Judiciary Publication, 2002, Vol. 4, p. 154.Google Scholar

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