接近正義或濫訴防止？──民事事件律師酬金負擔制度的發展與檢討

On the Attorney Fee Shifting Rule in Taiwan

司法是正義的最後一道防線。而欲利用法院、接近正義，常需先接近律師。在過去二十年來，行政、立法及司法部門都積極努力建立各種法律扶助制度並提供更多資源予弱勢者。相較之下，關於律師酬金負擔得否轉移的問題，長期被忽視。關於民事事件的律師酬金負擔，我國法基本上採取當事人各自負擔原則。法律另有明文規定時，律師酬金可做為訴訟費用之一部，而轉由敗訴者負擔。本文認為我國的敗訴者負擔制度與律師強制代理制度不當的連結，因此使得此一重大影響訴訟費用的制度沒有受到足夠的重視。我國法上也存在著單向轉移的規定，但立法者對於此類規定的存在意義似未有深入的思考。最後，我國法上亦常有由政府特別立法來負擔律師酬金的情形。此類立意良善的措施，若未能將市場機制納入考量，其效果可能大受影響。

Judiciary is the last line of defense for justice. Therefore, access to justice depends to a large extent on access to lawyers. For the past two decades, different branches of Taiwan's government have been putting efforts to create favorable rules and provide legal aid to the underprivileged. What has long been neglected, in terms of Taiwan's litigation funding regime, is the issue of attorney fee shifting. According to the Civil Procedure Law, the basic rule in Taiwan is each party bears his own attorney fees. Attorney fees can be shifted to the loser only when the law so provides. This paper argues that the current fee shifting regime is wrongly connected to rules of mandatory representation. The result is that little attention is paid to the change of fee shifting rule while much ink is spilled on the pros and cons of mandatory representation. One-way fee shifting rules can also be found in some laws. However, it appears that their emergence is without justifications and not carefully deliberated. Lastly, public funding is sometimes used to lessen the burden of attorney fees of one party. It is suggested that market mechanisms should be taken into account when such acts out of benevolent intent is to be taken.