“诉累”的法经济学分析

Law and Economics Analysis of "Litigation Exhaustion"

“诉累”是司法界经常使用的一个术语。从法经济学的角度看“诉累”的产生原因在于普法力度不够、司法权力寻租、低下的司法效率、委托代理、较高的诉讼成本、行政机关对司法活动的干涉、较低的司法素质。诉累导致“租的耗散”、激化社会矛盾,导致司法公信的丧失和“理性”的违约行为。应加强普法活动、切实保证司法独立、全面提高司法人员的素质,健全法律援助制度、确立权力与责任相统一的原则。

＂Litigation exhaustion＂ is a term prevailing in judicial circles. This paper analyzes the origin and evolution of litigation, specifically maintains judicial independence and technicality, and comprehensively observes the cause of ＂litigation exhaustion＂ from the angle of law and economics. Further, insufficiency of popular legal education, abusing judicial powers for profit, low judicial efficiency, agency by agreement, high litigation costs, interference of the executive, and incompetence of judicial personnel are all relevant. Also included are the harms and consequences caused by litigation exhaustion： sapping social resources, intensifying social contradictions, loss of judiciary reputation, ＂rational＂ breach of contract and ＂winning a lawsuit while losing money. ＂ This author determines that only in the following ways can we solve the problem： extending and deepening popular legal education, practically guaranteeing judicial independence, improving the ability of judicial personnel, completing legal aid institutions, and complying with the principle of integration of power and duty.