不同制度下最適損害求償金額與訴訟支出之分析

Analysis of the amount of Litigation Expebditure under Different systems of Optimal Claim of Request Compensation

謝汶蒼(Wen-Cang Xie)

指導教授 ： 蔡明宏

國立中正大學/管理學院/經濟系國際經濟研究所/碩士(2015年)

摘要

本文延伸Farmer and Pecorino (1999)的模型分析，討論內生化原告在訴訟開始前向被告請求賠償且賠償金額會影響勝負的情況下，當事人雙方在不同訴訟制度下之最適求償和訴訟決策，與兩種訴訟制度之效率分析(英國制與美國制)。本文結果顯示由於英國制下敗者要負擔所有的賠償，如此會放大原告利用賠償金額影響勝率的優勢，導致英國制下雙方於均衡時不會進入訴訟。美國制之下由於雙方不論結果如何皆各自負擔自己的訴訟費，因此原告相對於英國制便比較沒優勢，雙方的訴訟投入與預期報酬則比較接近，均衡時被告也會願意進入訟訴，另外比較靜態結果顯示，在兩種訴訟制度下，隨著訴訟費投入效率愈大，當事人雙方在進入訴訟程序時所投入的訴訟費用投入愈高，且隨著原告受到損害愈高，原告的請求賠償也會愈高。

關鍵字

訴訟 ； 英國制 ； 美國制 ； 訴訟費

並列摘要

This paper extends Farmer and Pecorino (1999) model, we will discuss if the plaintiff can seek compensation to the defendant before the proceeding begin, and among of compensation will affect the outcome, what the parties choose their decision. Our result for the parties under the English rule does not go into litigation. Because of under the English rule the loser will afford all legal expenditure, which amplifying the plaintiff in the amount of compensation affect use of the advantages of winning. Under the American rule, between the parties expected return is closer. Which because under the American rule regardless of the outcome the parties afford their own legal expenditure. Therefor the plaintiff with respect to the English rule would be no more advantage. In addition , as greater the the legal expenditure greater.
This paper extends Farmer and Pecorino’s (1999) model by endogenizing the plaintiff’s pre-litigation claim of request compensation to investigate how the litigation systems (the English rule and the American rule) affect the plaintiff’s optimal pre-litigation claim of request compensation and both parties’ optimal legal expenditures. Moreover, we also examine which system is more efficiency. Since the loser in litigation has to pay both parties’ total legal expenditure under the English rule, the plaintiff has more incentive to increase his winning probability of litigation by significantly raising his legal expenditure. Our results show that the defender will accept to pay the pre-litigation claim of request compensation to the plaintiff to avoid litigation in this case. This implies that under the English rule, the litigation does not occur in equilibrium.
In contrast with the English rule, each party in litigation is responsible for his own legal expenditure under the American rule. This implies that under American rule, the plaintiff has no incentive to increase his winning probability of litigation by significantly raising his legal expenditure. We show that not only both parties’ legal expenditures but also their expected returns are similar. Moreover, we also show that the defender does not accept the pre-litigation claim of request compensation to the plaintiff in equilibrium. This implies that under the American rule the litigation will occur in equilibrium. Finally, comparative static results show that under both litigation systems, each party’s optimal legal expenditure increases with effectiveness of legal expenditure, and the plaintiffs’ optimal claim of request compensation increases with the plaintiffs’ real damage.

key word：American rule, English rule, litigation, legal expenditure

並列關鍵字

legal expenditure ； litigation ； English rule ； American rule

參考文獻

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