Research On Chinese Civil Summary Procedure

Civil summary procedure is a special procedure for the adjudication of relatively uncomplicated civil cases. It is the essential product when the civil litigation develops to a particular phase. Civil summary procedure is applicable to those cases, which have low amount of lawsuit bid and less disputation. The establishment of this procedure simplifies judicial proceedings, eliminates judicial delay, minimizes judicial costs, and speeds up the adjudication of cases. Hereby, it is beneficial not only to the promotion for the public to get close to and use judicature, but also to the court's quick adjudication for civil disputation. Sequentially civil adjudication becomes more and more applicable to the need of social development. This paper proceeds with the concept, characteristics, value orientation of summary procedure and other general theoretic issues; introduces and analyzes the civil summary procedures in the representative countries from the two great legal systems; analyzes some existing problems in Chinese legislation of civil summary procedure and the actual adjudicative practice. This paper also offers some concrete assumptions for the perfection of Chinese civil summary procedure and analyses the feasibility of the establishment of small amount lawsuit system in our country. The whole paper is divided into four chapters. Chapter one talks about general theories of summary procedure. There are three parts in this chapter. Part one summarizes various points of views about the concept of summary procedure legally and theoretically. It points out that civil summary procedure consists of both summary procedure in the narrow sense and small amount lawsuit procedure by uniting the existing stipulation of civil summary procedure in Chinese laws. Part two sketches the characteristics of civil summary procedure. Comparing with general civil procedures, civil summary procedure is characterized by the specified applicable courts, the specified applicable scope of cases and the convenience of practicing regulations. Among them, the last characteristic also includes the convenience of the model of prosecution, the convenience of the procedure for accepting and hearing a case, the convenience of the model of summons, the simplicity of the judicial organization, the convenience of interrogation in court and the shortness of adjudicative deadline. Part three explains the value orientation of summary procedure. It is mainly composed of three aspects: the convenience for the litigant to use lawsuit system equally and fully, the principle of applicable costs, and the balance between litigation justice and benefit. Chapter two introduces civil summary procedures in other countries. Three parts are included in this chapter. Part one introduces civil summary procedures in countries with traditional continental legal system. Representative countries are Germany, France and Japan. Part two introduces civil summary procedures in countries with traditional British and American legal system represented by America and Great Britain. Part three briefly analyzes civil summary procedures in the countries from two great legal systems. From the developed foreign countries'progressive tracks of civil lawsuit system, we can clearly see that the simplicity of procedures is always the main stream for the reform of civil lawsuit system. Faced with a series of problems such as the pressure brought about by the gradually increase of dissension, judicial delay and the high judicial costs, countries all over the world are carrying out judicial reforms and make facility, fastness and cheapness as the basic goals of the civil lawsuit reform to conduct a series of creation for summary procedure in order to comply with the social development and changes. From the survey of the legislation of summary procedure in all countries, we can see that they all adopt certain measures, although the concrete stipulations vary, some inner regularities and common characteristics can still be found out: Firstly, they all theoretically based on the pursuit of the balance between litigation justice and benefit. Secondly, they all set up applicable special organizations for summary procedures. Thirdly, they all make the cost of lawsuit bid as the criterion of delimiting the applicable scope of cases. Fourthly, they also have some concrete stipulations in common in their summary procedures. Based on the comparative study of the legislative examples of summary procedures in countries with traditional continental legal system and British and American legal system respectively,we can search for the inner regularities and progressive trend of civil summary procedure. Drawing on the common characteristics, we can get some further thinking for the Chinese civil summary procedure reform and realize the localization of laws. Chapter three analyzes the present situation for our country's civil summary procedure and judicature. Three parts are included. Part one explains the present legislative situation for Chinese summary procedure. It mainly exhibits that the legislative stipulations are oversimplified and too general, so that the stability of procedures are affected. Part two explains Chinese present judicative situation for summary procedure. The present situation shows: Firstly, the applicable scope of cases for summary procedure is not clear. Secondly, the boundaries applicable to summary procedure and general procedure are not clear. Thirdly, the stipulations for mutual transformation between summary procedure and general procedure are indefinite. Fourthly, no special organization applicable to summary procedure is established. Fifthly, there are no sufficient legal stipulations offered for litigant to choose applicable procedure. Sixthly, the judicative interpretation and legislation are contradictory. Part three analyzes the reasons for the present legislative situation for Chinese summary procedure. Mainly the reasons come from two aspects: the stipulation for the applicable scope of cases for summary procedure is too principled and the lack of feasibility for the establishment of summary procedure. Chapter four discusses the perfection and construction of Chinese civil summary procedure. This chapter is divided into three parts. Part one is the explanation of the proper orientation for the reform of summary procedure. Consideration must be taken to the systematicness and feasibility, so as to offer a proper orientation for the reform. Specifically speaking, the following three balances should be achieved: firstly, the balance between the expansion of the judge's commanding right and the endowment of the litigant's subjective right; secondly, the balance between the expansion of the applicable scope for summary procedure and the guarantee of the litigant's procedural benefit; thirdly, the balance between genuine justice and procedural justice. Part three expounds the concrete assumptions for theperfection of Chinese summary procedure. The first one is to put up specialized organizations and personnel applicable to summary procedure. The second is to further expand the applicable scope for summary procedure. And three aspects can be used to delimit the scope: drawing the applicable criterion for summary procedure according to the sum of lawsuit bid; defining the applicable scope for the summary procedure according to the nature of case; and applying to summary procedure according to the litigant's expectation. The third is to put up accommodative pre-procedures. The fourth is to further simplify the content of legislative procedure. Briefly speaking, the times for the opening of court should be limited to once as much as possible, and the production of the judgment document should also be simplified. The fifth is to expand the judge's interpretative scope, mainly including the interpretation for the unclear lawsuit request, the interpretation for the insufficient lawsuit request, the interpretation for the elimination of impropriety, the interpretation for insufficient evidence data and the interpretation for the litigant's ignorance of legal views. The sixth is to reform the fee-collecting system for summary procedure. The seventh is to adjust the mechanism of interrogative-level remedy. Part three discusses the necessity and some concrete assumptions of the put-up of small amount lawsuit procedure based on the concept and characteristics of this procedure. The establishment of this procedure offers opportunities for ordinary people to get close to and use judicature. It also reduces the difficulty and obstacle for people's appealing to the disputation solving organization. In so doing people who need legal relief will not renounce his lawsuit right resulted from the expensive costs for lawsuit procedures. Moreover, it reasonably utilizes the national judicative resources as much as possible and avoids the excessive consumption of social resources due to lawsuit.