|
Champerty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit. It is "A taking in hand, a bearing up or upholding of quarrels or sides, to the disturbance of the common right."〔Coke (1641) ''Institutes''〕 "Champerty" is the "maintenance" of a person in a lawsuit on condition that the subject matter of the action is to be shared with the maintainer. Among laypersons, this is known as "buying into someone else's lawsuit." At common law, maintenance and champerty were both crimes and torts, as was barratry, the bringing of vexatious litigation. This is generally no longer so as during the nineteenth century, the development of legal ethics tended to obviate the risks to the public, particularly after the scandal of the Swynfen will case (1856–1864). However, the principles are relevant to modern contingent fee agreements between a lawyer and a client and to the assignment by a plaintiff of his rights in a lawsuit to someone with no connection to the case. Champertous contracts can still, depending on jurisdiction, be void for public policy or attract liability for costs. ==History== The restrictions arose to combat abuses in medieval England. Unscrupulous nobles and royal officials would lend their names to bolster the credibility of doubtful and fraudulent claims in return for a share of the property recovered.〔Winfield (1919)〕 Speaking extrajudicially in the early seventeenth century, Lord Chief Justice Coke described the origins of maintenance in this way:〔1 Coke Litt 368b, cited in Friston, M, Civil Costs Law and Practice (2nd ed), Jordans, ISBN 978-1846613128〕 :‘Maintenance, ''manutenentia'', is derived from the verb ''manutenere'', and signifieth in law a taking in hand, bearing up, or upholding of quarrels and sides, to the disturbance or hindrance of common right.’ : These comments were made in context of the court previously having been anxious to prevent a wide range of maintenance; the phrase ‘maintenance’ had been used to apply not just to those who gave support in civil claims, but also to those who sought to maintain robbers, heretics and even ‘a new sect coming from beyond the sea, clad in white garments’.〔Friston, M, Civil Costs Law and Practice (2nd ed), Jordans, ISBN 978-1846613128〕 Judicial independence was gradually established, however, and by the early 19th century Jeremy Bentham wrote:〔''Works'' (Bowring (ed), 1843) vol 3, pp 19–20〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Champerty and maintenance」の詳細全文を読む スポンサード リンク
|