Winning Case = Refund of Litigation Fees Immediately
By Weiwei Gu / Jess Chen
In practice, by in large the courts in most areas will not refund the pre-paid litigation fees to the winning party until they have received the litigation fees from the losing party. Should the losing party then fail to perform its obligation at the enforcement stage, it is not possible to implement the rule that “the losing party shall bear the litigation fees”. Therefore, in many cases, the winning party will not only fail to get the Judgement enforced, but also fail to get the litigation fees back.
On April 10th, 2018, the Shanghai High People’s Court issued the Circular on the Implementation of Special Corrective Actions for Winning Party to Refund the litigation Fee (Hu Gao Fa〔2018〕No. 111) (hereinafter referred to as the “the Notice”, see Annex for details), in an attempt to resolve the issue of any “delay in the refund of litigation fees”. This article will briefly analyze the system of “refund of the litigation fees for winning party” in connection with the relevant provisions of the Notice.
I Who shall the winning party claim for the prepaid “litigation fees”?
In practice, many courts will not take the initiative of refunding the litigation fees to the winning party. Instead, they require the winning party to apply to the enforcement bureau for the refunding of the litigation fees at the enforcement stage. Whilst this is commonly seen in many courts, this practice actually contradicts the law:
1. The litigation fees shall be refunded by the court unless the winning party abandons such right
- Article 207 of Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China(Fa Shi 〔2015〕 No.5)
After a judgment takes effect, a people's court shall return the litigation fees which the winning party has prepaid but shall not bear and the losing party shall pay. This is unless the winning party is willing to bear the litigation fees or agrees that the losing party will directly repay the litigation fees thereto.
2. The court shall refund the litigation fees within 15 days from the date on which the legal document becomes effective
- Article 53 of Measures for the Payment of Litigation Fees（Order of the State Council No. 481）
After a case is closed, the people's court shall notify the party in writing of the detailed list of the litigation fees and the amounts payable by the parties concerned and, at the same time, state the amount payable by each party in the Judgement, ruling or mediation document..
Where the litigation fees are required to be refunded to a party, the people's court shall do so within 15 days from the date on which the legal document becomes effective.
II What kind of "litigation fees" should be refunded?
In accordance with the Notice and Articles 6, 7 and 10 of Measures for the Payment of Legal Costs, the following two types of expenses are the "litigation fees" that the court should refund:
1. Case acceptance fee
These include case acceptances fees for:
(1) the first instance;
(2) the second instance; and
(3) the retrial case.
2. Application fee
(1) Applying for the enforcement of a legally effective decision, ruling or letter of mediation made by the people's court, the award or letter of mediation made by the arbitration institution pursuant to the law, or the creditor's right document with the enforceability illegally granted by a public notarial organ;
(2) Applying for preservation measures;
(3) Applying for a payment order;
(4) Applying for a public notice of claim;
(5) Applying for revocation of an arbitral award or for affirmation of the effectiveness of an arbitration agreement;
(6) Applying for bankruptcy;
(7) Applying for maritime injunction, general average adjustment, establishment of a fund for limitation of liability for maritime claims, maritime credit registration, or notice of claim of maritime lien; and
(8) Applying for acknowledgement and enforcement of the decision or ruling of a foreign court or the award of a foreign arbitration institution.
III How to deal with the "refund of litigation fees"?
According to the new policy, the winning party will not need to apply for the refund of the litigation fees, and the court shall instead make the refund automatically:
1. At each payment stage, the court will confirm the refund account information with the parties.
According to the Notice, when the Case Filing Chamber receives the prepaid case acceptance fee or the prepaid application fee from the plaintiffs and the applicants, and when the Adjudication Division receive the prepaid counter-claim fees from the defendant; the Case Filing Chamber and the Adjudication Division should both explicitly advise the party to confirm their bank account information for the acceptance of the “refund fee”.
2. It is expected that by August 2018, the courts in Shanghai will be able to automatically transfer the refund
According to the Notice, the court will upgrade their existing lawsuit and refund related information management systems to achieve automatic transfer of refunds before July 31, 2018.
IV Experience and Practical Insight under the New Policy
It has been reported that the new policies have been implemented in several intermediate courts and grassroots courts in central urban areas of Shanghai, and the winning parties will soon be able to enjoy the convenience of timely refunds.
In a civil case represented by this author, the successful verdict of the Shanghai Huangpu District People's Court came into effect on May 7, 2018. The staff of the court in Huangpu Court made it clear that no litigation fees shall be jointly claimed in the enforcement application. Instead, the presiding judge of this particular case will be responsible to deal with the issue of the refund.
Since the bank account information of the winning party is not available on the court system, the court still requires that a “Refund Application” be submitted to the court, which should specify the following items:
- case number;
- information of parties to the case;
- amount of litigation fees; and
- bank account information for refund.
In view of this and considering that the registration and filing of refund information in Shanghai courts of various levels are still in the process of being realized, we predict that in the current transitional period, the winning party will still need to liaise with the court and submit an application for the refund.
2. Practical Insight
With the gradual implementation of the Notice, the issue of "the winning party has to pay down the litigation fees" will no longer exist in Shanghai, and the "high litigation fee" will no longer be a concern for the creditor to consider when initiating any litigation. Furthermore, a vast number of creditors can also take advantage of the convenience of policies to protect their interests from the perspective of cost savings using the following methods:
(1) Draft of the Jurisdiction Provisions: Select a district court where the concept “winning party getting litigation fees refunded” is well carried out.
(2) Choice of jurisdictional courts: In the case of multiple jurisdictional courts, select the one where the concept “winning party getting litigation fees refunded” is well carried out.
(3) Financing of litigation fees: For cases where the legal relationship is clear and the dispute is not controversial, considering that the litigation fees will be refunded after winning the case, the litigation fee for such cases can be obtained through financing.
Annex：The full text of Circular on the Implementation of Special Corrective Actions for Winning Party to Refund the litigation Fee (Hu Gao Fa〔2018〕No. 111)