Viewpoint... Analysis of the litigation status and sharing principle of appraisal fees.

With regard to the cost of appraisal, the Civil Procedure Law does not provide for detailed provisions. The current "Civil Procedure Law" only divides litigation costs into "case acceptance fees" and "other litigation costs" in the first paragraph of Article 118 ".

In 1984, the Supreme People's Court issued the "Measures for Civil Litigation Fees (for Trial Implementation)". The second paragraph of Article 2 of the judicial interpretation stipulates: "The parties to a property case shall pay appraisal fees, inspection fees, announcement fees, and witness missed work subsidies. And travel fees, as well as other litigation costs that the people's court believes should be borne by the parties." It can be seen from this provision that the 1984 Civil Litigation Fees (Trial) classifies appraisal fees into the category of "other litigation costs" and does not further subdivide appraisal fees.

In 1989, the Supreme People's Court promulgated the "People's Court Litigation Fees Measures", which abolished the 1984 "Civil Litigation Fees Measures (Trial)". Article 2 of the 1989 Measures for Litigation Fees of the People's Courts stipulates: "In addition to paying the case acceptance fee to the people's court, the parties to property cases and administrative cases shall also pay the following fees: (1) fees for inspection, appraisal, announcement and translation (except for the local common ethnic languages and characters); (II) the transportation expenses, accommodation expenses, living expenses and missed work subsidies for witnesses, appraisers and translators to appear in court on the date decided by the people's court;" it can be seen that compared with the 1984 "civil litigation fee method (Trial)", The traditional "appraisal fee" is subdivided into two parts: "appraisal fee" in the sub-concept sense and "transportation fee, accommodation fee, living expenses and missed work subsidy fee for appraisers to appear in court. Both belong to the category of "other litigation costs" in litigation costs and should be paid to the court.

In 2006, the State Council promulgated the "Measures for the Payment of Litigation Costs". Article 6 of the administrative regulations stipulates: "The litigation costs that the parties shall pay to the people's court include: (1) Case acceptance fees; (II) application fees; (III) witnesses, appraisers, and interpreters Transportation expenses, accommodation expenses, living expenses and lost work subsidies incurred by personnel and calculators appearing in court on the date designated by the people's court." It can be seen that although the 2006 "Measures for the Payment of Litigation Costs" maintained the subdivision of appraisal fees in the 1989 "Measures for Litigation Fees of the People's Courts", it only included the "transportation expenses, accommodation expenses, living expenses and lost work subsidies for appraisers appearing in court" in the "litigation costs that the parties should pay to the people's courts", while the "appraisal fees" in the sub-concept did not appear in the clear list. The 2006 "Measures for the Payment of Litigation Costs" further stipulates in Articles 11 and 12: "The transportation expenses, accommodation expenses, living expenses and lost work subsidies incurred by witnesses, appraisers, translators and calculators appearing in court on the date designated by the people's court shall be collected by the people's court in accordance with the standards prescribed by the state." "In the course of litigation, the people's court shall decide on the principle of who claims and who bears the expenses that should be borne by the parties concerned in accordance with the law due to appraisal, announcement, inspection, translation, evaluation, auction, sale, storage, storage, transportation and ship supervision, and the people's court shall not collect and pay the expenses directly to the relevant institutions or units." It can be seen that the parties involved in the part of "transportation, accommodation, living expenses and missed work subsidies for the appraiser to appear in court" need to pay to the court, while the parties involved in the sub-concept of "appraisal fees" need to be paid directly to the relevant institutions or units, and the people's court shall not collect and pay on their behalf.

In 2009, the National Development and Reform Commission and the Ministry of Justice issued the measures for the Administration of Judicial expertise fees, in which Article 15 states that "in litigation activities, if a party applies for and is approved by the people's court to directly entrust a judicial expertise institution to carry out the appraisal, the required appraisal fees shall be paid directly by the party concerned to the judicial expertise institution, and the people's court shall not collect and pay on its behalf." This article is basically consistent with the handling mode of the Measures for the Payment of Litigation Costs issued by the State Council in 2006.

First view:The judicial appraisal fees paid by the parties in the course of litigation are litigation costs. Chapter 2 of the new Measures for the Payment of Litigation Costs stipulates the scope of payment of litigation costs, which are roughly divided into two categories: one is the litigation costs paid directly by the parties to the people's court or collected by the people's court on their behalf, and the other is the people The court decides that the parties directly pay the relevant institutions or units, such as appraisal fees, assessment fees, etc. Clearly, identification fees are classified as litigation costs.

Second view:Article 12 of the Measures for the Payment of Litigation Costs stipulates: "In the course of litigation, the people's court shall, according to the principle of who claims and who bears the expenses that should be borne by the parties in accordance with the law due to appraisal ......", that is to say, appraisal is the obligation of the applicant to prove evidence, and should be borne by the applicant as the cost of proof.

I think the first argument is more convincing:First, the new "Measures for the Payment of Litigation Costs" stipulates that appraisal fees and other fees are included in the scope of payment of litigation costs in Chapter II, indicating that appraisal fees are still litigation costs. Article 6 only stipulates "the litigation costs that the parties should pay to the people's court", and does not include the meaning of "those who do not pay to the people's court do not belong to the litigation costs. Second, the principle of "who claims, who bears" as mentioned in Article 12 of the new "Measures for the Payment of Litigation Costs" should refer to the principle of determining the subject of payment at the stage of proof, rather than the principle of who will bear the final determination of the appraisal fee when the result of the judgment appears. The principles set out in Article 12 do not affect the status of appraisal fees as litigation costs. Third, the Civil Procedure Law stipulates that the parties may apply to the people's court for appraisal on the special issue of ascertaining the facts. If the parties apply for appraisal, the parties shall determine the qualified appraiser through consultation; if the consultation fails, the people's court shall appoint the appraiser. Note the wording here, the parties are the applicants and the court is the designee. The obligation of the appraisal institution is to help the judge explain and judge specific issues through specialized knowledge. Therefore, the status of the appraisal institution is neutral and has no employment or contractual relationship with any party involved in the lawsuit. The appraisal is entrusted by the court as the main body. The appraisal fee is paid in advance by the parties instead of the court. This part of the fee should be taken as part of the litigation fee, and its litigation status is the litigation fee of procedural expenditure.

First view:The appraisal fee is actually the reasonable cost of the applicant's expenditure for the realization of the right, which is an actual loss and should be dealt with in the judgment.

Second view:Appraisal fees belong to the category of litigation costs and should appear in the burden of litigation costs as procedural expenses in litigation.

Third view:Although the appraisal fee is a reasonable expense incurred by the applicant for the realization of the right, the court should not take the initiative to deal with it when the parties do not file a separate claim for the appraisal fee.

I think the second view is more reasonable:First of all, when the appraisal conclusion obtained by the party applying for appraisal after paying the appraisal fee proves that the other party's claim is not valid, the appraisal fee paid by the party applying for appraisal because of the other party's false claim may not be able to be borne by the other party in this case or another case, which is obviously not in line with the principle of litigation economy and efficiency. Secondly, as mentioned above, the new Measures for the Payment of Litigation Costs regard the appraisal fee as the litigation fee, which, together with the case acceptance fee, belongs to the expenses paid or advanced by the parties in advance, and belongs to the procedural expenses, so there is nothing wrong with dealing with the burden of litigation costs.

During the trial of the case or after the issuance of the judgment document, the parties often encounter situations where they have objections to the appraisal fee charged by the appraisal agency, and believe that the appraisal fee is too high or the appraisal fee should not be charged for the appraisal item has not been completed. In this regard, the parties can file a lawsuit with the appraisal agency to claim to reduce or return the appraisal fee. In practice, there are the following differences of views:

First view:The parties are the decider and applicant of the appraisal, and the court is given only the right to approve the appraisal application. If the parties believe that the appraisal results have not achieved the expected purpose, and then have objections to the appraisal fee, the parties may request the appraisal agency to return the appraisal fee. Its legal basis can be applied by analogy to Article 78 of the Civil Procedure Law, which states that "if a party disagrees with the appraisal opinion or if the people's court deems it necessary for the appraiser to appear in court, the appraiser shall testify in court. If, upon notification by the people's court, the appraiser refuses to testify in court, the appraisal opinion shall not be used as the basis for ascertaining the facts; the party who paid the appraisal fee may demand the return of the appraisal fee." The request for return here may be made by filing a separate lawsuit with the appraisal institution as the opposite party. The appraisal opinion is essentially a kind of witness testimony, so the appraisal fee in the sense of the sub-concept is actually the consideration paid by the party in order to obtain evidence, which is not directly related to the court and the other party. Within the framework of the current law, just as the expenses such as travel expenses paid by the parties in order to collect certain evidence cannot be claimed to the litigation counterparty, the appraisal fees paid by the parties to the appraisal institution in order to obtain the appraisal opinion do not have the same room for claiming to the litigation counterparty. How much and when the appraisal fee should be paid is decided through consultation between the party applying for appraisal and the appraisal institution and delivered directly to the appraisal institution or unit. The court has neither the right to decide nor the collection. The parties' disagreement with the appraisal fee only exists between the parties and the appraisal agency to deal with the problem of separate cases.

Second view:In the civil law system, the task of the appraisal institution is to help the judge to identify and judge specific issues through specialized knowledge. In the same legal system of our country, the status of the appraisal institution is neutral, and there is no employment and contract relationship with any party involved in the lawsuit, which can ensure the notarization and neutrality of justice. The Civil Procedure Law stipulates that the parties may apply to the people's court for appraisal on the specialized issue of ascertaining the facts. If the parties apply for appraisal, the parties shall determine the qualified appraiser through consultation; if the consultation fails, the people's court shall appoint the appraiser. Accordingly, the parties are the applicants and the court is the designee. Therefore, when the parties file a lawsuit against the appraisal fee, they should dismiss the lawsuit on the grounds that they have not established a contractual relationship with the appraisal institution and the plaintiff's subject is not suitable.

I think the second view is more reasonable:First, although the appraisal fee belongs to the actual loss of the party who bears it, it does not belong to the same category as the substantive rights in the party's claim, so it cannot claim relief or refund by way of litigation. Second, the subject of the appraisal commission is the people's court, and the contractual relationship is established between the court and the appraisal institution, which is a double-service contract, and the obligation of the appraisal institution is to help the judge explain and judge specific issues through expertise, while the obligation of the opposite people's court is to pay. The appraisal fee should be paid in advance by the court, because the appraisal institution serves the court. If the money is nominally paid by one of the parties, the appraisal institution will lose its neutral status. Only in practical operation, the court does not have this expense, and it is impossible to prepay a large amount of funds to entrust the appraisal, so in fact, the appraisal fee is advanced by the party applying for the appraisal, and finally shared by both parties under the proportion of responsibility determined by the judgment. This is a helpless move, but it is also the most in line with the common interests of all participants in the litigation. Based on this, if the parties have objections to the appraisal fee, they can only file a lawsuit with the people's court, and cannot file a lawsuit with the appraisal agency based on the entrustment contract relationship.

The parties cannot file a separate appeal against the burden of appraisal fees in the first-instance judgment. The reasons are as follows: Article 43 of the new "Measures for the Payment of Litigation Fees" stipulates: "The parties shall not file a separate appeal against the people's court's decision on litigation costs. If the parties individually object to the decision of the people's court on litigation costs, they may apply to the president of the people's court that made the decision for review. The review decision shall be made within 15 days from the date of receipt of the party's application. If the parties object to the calculation of the litigation costs decided by the people's court, they may apply to the people's court that made the decision for review. If there is a definite error in the calculation, the people's court that made the decision shall correct it." That is, if the parties have objections to the people's court's decision on litigation costs, they may apply to the president of the court or the court for review according to the circumstances, but they may not appeal the decision on litigation costs alone. Therefore, because the appraisal fee is the litigation fee stipulated in the Measures for the Payment of Litigation Fees, in accordance with the provisions of Article 43 of the Measures, the parties cannot appeal the appraisal fee alone, but they can apply to the president of the court for review. If there is any objection to the calculation of the litigation fee, you can apply to the court for review.

If the plaintiff claims rights to the defendant on the basis of the IOU evidence submitted by him, the defendant has doubts about the authenticity of the IOU and applies for appraisal. The appraisal conclusion is that the signature of the defendant in the IOU is false. After that, the plaintiff applies to the court for withdrawal of the lawsuit. There are different views on who will bear the appraisal fee advanced by the defendant after the plaintiff withdraws the lawsuit:

First view:should be borne by the defendant. Article 34 of the "Measures for the Payment of Litigation Costs" stipulates: "If the plaintiff or appellant in a civil case applies for withdrawal of the lawsuit, and the people's court decides to approve it, the case acceptance fee shall be borne by the plaintiff or appellant." It is clearly stipulated that the plaintiff is responsible for the "case acceptance fee", and the appraisal fee is clearly not a "case acceptance fee". At the same time, Article 12 of the Measures stipulates: "In the course of litigation, due to appraisal ...... the expenses that should be borne by the parties in accordance with the law, the people's court shall, in accordance with the principle of who claims, who bears ......", that is to say, the appraisal is the obligation of the defendant to prove evidence and should be borne by the defendant himself.

Second view:should be borne by the plaintiff. Although the appraisal fee does not belong to the "case acceptance fee", it still belongs to the "litigation cost". Article 29 of the "Measures for the Payment of Litigation Costs" stipulates: "The litigation costs shall be borne by the losing party, except for those voluntarily borne by the winning party." In this case, the plaintiff withdrew the prosecution after the defendant applied for appraisal, and although it was not judged against him, the consequences should still be borne by the plaintiff.

I think the second view is more reasonable:First of all, Article 145 of the Civil procedure Law stipulates: "if the plaintiff applies for withdrawal of the lawsuit before the judgment is pronounced, the people's court shall decide whether to allow it." In this case, the plaintiff obviously because the result of the appraisal is unfavorable to his own party, his claim can not be supported by the court so withdraw the lawsuit, at this time the court may not allow the plaintiff to withdraw the lawsuit, continue to hear, the final judgment will be the cost of the appraisal included in the litigation costs to be borne by the losing party. Secondly, if the court decides to allow the plaintiff to withdraw the lawsuit, the appraisal fee should be dealt with together with the case acceptance fee.

In judicial practice, there are the following differences of opinion on how to share the fixed fee between the parties:

First view:According to the provisions of Article 12 of the new "Measures for the Payment of Litigation Costs", the people's court decides that the parties should pay directly to the parties concerned in accordance with the principle of "who claims, who bears". Institutions or units. Therefore, according to the principle of "who claims, who bears", the appraisal fee should be paid directly by the parties to the appraisal institution, regardless of the final outcome of the litigation, it should be borne by the party claiming the appraisal.

Second view:When appraisal is an inevitable part of proof, if the principle of who advocates who bears the burden increases the litigation cost of the applicant for appraisal, it causes people's negative attitude towards litigation and is not conducive to the realization of justice. Therefore, the "burden" in Article 12 of the "Measures for Payment of Litigation Costs" should be understood as "advance payment". The appraisal fee shall ultimately be borne by the party whose appraisal result is unfavorable to him.

I think the second view is more reasonable:First, the principle of "who claims, who bears" as mentioned in Article 12 of the new "Measures for the Payment of Litigation Costs" should refer to the principle of determining the subject of payment at the stage of proof, rather than the principle of who will bear the final determination of the appraisal fee when the result of the judgment appears. Therefore, the second view is reasonable to understand "burden" as "advance payment", and the principle set out in article 12 does not affect the court's final decision on the allocation of appraisal fees. Second, it is not in line with legal logic to understand the principle of "who advocates, who bears" as the principle of ultimate responsibility. For example, when the appraisal conclusion obtained by the defendant after paying the appraisal fee proves that the plaintiff's claim is not valid, if it is believed that the defendant should be the ultimate bearer of the appraisal fee, then the appraisal fee paid by the defendant as a result of the plaintiff's prosecution will not be required to be borne by the plaintiff in this case or another case. This is clearly inconsistent with the legal principle of reciprocity of rights and obligations. Third, the burden on the party claiming the appraisal would prevent the plaintiff from fully exercising its right of action. On the contrary, if the appraisal fee is not absolutely borne by the claimant, then the plaintiff will take into account the rationality of his claim when filing a lawsuit, so as to take the necessary cautious attitude towards filing a lawsuit, so as not to bear the high appraisal fee.

In summary, the analysis of the nature and status of the appraisal fee in the litigation process, and the principle of sharing it is more clear. Therefore, the unified handling of the appraisal fee in judicial practice should be unified as soon as possible, so as not to increase the unnecessary litigation costs of the parties, more comprehensive and fair handling of each case, safeguarding the legitimate rights and interests of litigation participants, and highlighting judicial rigor and justice.