Research On The Efficiency Of Civil Litigation

Since the implementation of reform and opening policy, along with rapid economic development and social transformation, the traditional and new-type social disputes have been crowding toward courts. Therefore, there is a significant growth in the civil cases. According to statistics, the soaring number of first instance cases in 2010 was more than 6.09 million, which was roughly as many as 20 times in 1978 (about 0.3 million). Thus, promoting the efficiency of civil cases has become one of the most urgent targets. In order to consummate the civil procedural law, this dissertation puts forward the framework for promoting the efficiency of civil cases though the perspective of optimization of civil procedures and on the basis of research on the basic theories and the status-quo of other countries.The main body of the dissertation should be divided into six parts. Specifically, they are the summary, fundamental theories, the comparison of roadmaps to consummate the civil procedural law, the analysis on drawbacks and the suggestions to promote efficiency as well as the reform and flaws.The introduction part is conducted through the perspectives of objects, significances, reviews, trains of thoughts and innovations of research. Firstly, by generally depicting the efficiency, it restates that the efficiency, one of the core values of civil procedure, has been recognized widely. However, efficiency, as the comprehensive reference to assess the civil procedure should be combined of various elements. To avoid the old style on a grand scale of description, the dissertation adopts some specific procedures as the identifiable transition from judicial system to the efficiency. Secondly, the efficiency of civil cases has become one of the important criteria to evaluate the scientific nature of civil procedures, and it has also met the requirements of the access to justice, protecting the litigious rights, reducing the stress of courts and preventing the corrosion to the judicial power. Finally, on the basis of analyzing the heatedly discussed problems and new progresses on the topic both domestic and overseas, the dissertation points out the drawbacks of the systematical research on the efficiency of civil cases and the road map of reform.The first chapter identified the relevant concepts of the civil procedural efficiency. In the first instance, it clarifies that efficiency, as the unparalleled value except justice in civil cases, should be recognized together with the notion of justice. Thus, the interaction of procedures can be reflected. Meanwhile, by identifying the relationship between efficiency and benefit, it concludes that efficiency is the formulation of tactics in civil cases, whereas the benefit relates to the results and objects of civil cases. Through analyzing the static and dynamic differences among procedural efficiency, legal efficiency and judicial efficiency, it grasps the notion of the civil procedural more accurately. Secondly, the efficiency of civil cases should be originated from constitutional principles, optimize the resources available and justice in civil cases, accomplish the targets of civil cases. Consequently, the recognition that efficiency is only for technical analysis could be got rid of. Finally, to recognize the background and deepen the theories of the reform in civil procedural efficiency, the research on the topic should be upgraded from single cases to overall background.The second chapter serves as the basis for discussion in following parts. Firstly, because the relationship between efficiency and justice are the core part in the theories of efficiency, the justice somehow has an advantage over efficiency. It is the conflict between them. At the same time, in the modern theories, the efficiency and justice comprise of the core value of civil cases. As a result, it is the unity of them. Secondly, it elaborates the relationship between efficiency and justice and points out that civil procedures restraint the subjects by the consecutiveness and regulations. In some instances, it limits the pursuit of efficiency. Although the civil procedures restraint the efficiency, it is varied from limitation. It can guarantee the continuity and quick end of civil conflicts, thereby realizing the efficiency. Thirdly, this chapter introduces litigation current to the discussion and points that the promoting efficiency not only requires the harmony single procedures but also the harmony of various procedures. The distribution among government and subjects as well as the use of resources can affect the efficiency of civil procedure. To reach the balance between efficiency and justice, the judges and litigants should form a community of process. Finally, because of the ethicizing of efficiency and benefit, it is difficult to measure it in only one standard. This dissertation constructs the evaluation system through the aspects of government and individuals, using time and expense to evaluate the civil procedure.The third chapter compares relevant contents of US and UK with Japan and Germany; all are the typical models of common law system and civil law system respectively. After the world war?, all of the countries in the world were confronted with delay of action and high expense of legal action. To solve the above problems, those countries exerted efficiency-centered reforms, this could be reflected by the integration of different legal systems. The main points of above reforms are division of civil cases according to the complexity of them, the construction of ADR, and the designation of procedures for cases of small claim or simple facts. The civil procedures put centralized hearing as basic principle and consummate pretrial procedures. In addition, on the basis of justice, those reforms improve the appeal system and adopt first instance as finality in certain cases. Overall, to promote efficiency, all countries have made efforts to design proper procedures which are suitable to the status-quo of them.The forth chapter analyses the current situation of the efficiency of civil cases with demonstration. In the first section, the dissertation discusses the present condition historically and currently. The increasing number of civil cases has been putting pressure to the courts, however, regarding to the huge number of judges, the stresses of courts are relatively light. Therefore, the directions of reform are exploring the potential, perfecting the procedures, dividing cases rather than enrolling more judges. The second section analyses the drawbacks of the simplified procedure and concludes that it also serves as the small claim procedure and general procedure. As a result, the usage of simplified procedure is both expanded and limited while it is not simplified enough. Thus, the reforms should be performed to it. Additionally, this section also analyses the Procedure for hastening debt recovery for it also has the above functions. The third section decomposes the defects of general procedure and indicates that the repeated hearing is caused by the lack of general procedure and centralized hearing. Meanwhile, for the lack of evidence losing-right and other measurements to restrict the participants of civil cases, the civil cases are unstable and always delayed. The forth section studies the trial grand system and concludes that due to the width of the condition of appeal, rehearing of procedure and the retrial procedure, it is difficult to promote the efficiency. Apart from that, the distribution of resources in civil cases is so unreasonable that it has violated the principle that the procedures should be suitable to the nature of cases. As a consequence, the targets of justice and efficiency are not thoroughly reached. The fifth chapter puts forward the suggestions to consummate the reforms that aim at heightening efficiency. Firstly, the reforms should be combined with rights to opt among parties and the compulsory division in some cases. The high portion of mediation and withdrawal of lawsuits is the fundament to divide civil cases according to the complexity of them. In order to determine the scope of procedures, the criteria of division should refer to the cause of action and sum of claim. Secondly, the second, third and forth sections discuss the olive-shaped procedural structure. Specifically, they are assimilating the foreign and native experiences, mediating before trial and making better use of supervising procedure, consummating the procedure for cases of small claims and remedies to reconstruct the simplified procedure. To expand the usage of simplified procedure, the scope of it should be redefined and prevent the transform of it to general procedure. Through the improvements of pretrial procedure and the building of evidence losing-right system, the rest cases can be dealt with general procedure.The sixth chapter focuses of the function of judges. In the western countries, the judges perform a decisive role in civil cases. That's why the expansion of judges' authorities occurs in the reforms to promote efficiency. In China, the commanding power of judges is influenced by the administration of judicial power. On one hand, it exaggerates the figure of efficiency and distorts the nature of justice. On the other hand, due to the lack of commanding power, the judges are unable to promote the efficiency via propagating the process of civil cases. This dissertation advocates the reform of the administrative style of judicial activities, the construction of flat management of judicial activities, the transform of administrative evaluation system towards judges and definition of the scope of the commanding power of judges.