The Research On The Replenishment Of The Chivil Summary Promary

As a byproduct of the fast-developing economies of the world, the civil cases of all countries are increasing rapidly in the categories as well as in the amount. And this conflict between the justice and the economic is much great in China. The reform of the civil procedure has been preceded by the authority these years to reduce the cost of justice resource and lift the efficiency. The civil summary procedure reform is one of the main measures. The realistic measures are that reforming the uniform civil procedure, or establishing separate summary procedure and small-sum civil procedure to be effected. The author chose the summary procedure as the research subject, for that comparing with the stipulations of the foreign countries, our summary procedure system is far from satisfaction, particularly in the shortage of the concerning clauses, lacking uniform systemic structure, and unrealistic implication. Confronting the increasing pressure of the caseload, the People'Courts in all level of Chinese court system have reformed or created new measures or even new system of the summary procedure more or less. However, the differential measures employed by the People's Courts in different cities are conflicted with each other. As a whole, these reforming measures are lacking clear direction and boundary. Some of the measures are within the limit of the present law and judicial interpretation, and others may have trespassed the limit, furthermore, some of these measures themselves are not sound.In Sept 10, 2003,"to unify and stipulate the specific doing of the People's Courts of different areas on applying civil summary procedure, protect the legal procedural rights and substantive rights of the parties and, achieve the working subject of"justice and efficiency", the Supreme People's Court promulgated"Regulations on Application of the Summary Procedure to Try Civil Cases"(thereafter refer as the Regulations) which enacted on Dec 1, 2003.Since the enactment, there have been many new issues arising in the judicial practice. The author, as a law practitioner in the basic court, tries to define the concept of the civil summary procedure and the different legislation with comparative research methods in order to interpret the substance of the summary procedure, reviewing the principle of"Efficiency first, justice together"mainly based on the newly enacted the Regulations and other judicial interpretations, giving some suggestions on the reformation of the civil summary procedure.This article has 4 chapters. The first chapter mainly introduces the readers to the basic theory of the civil summary procedure, which further divided into 3 parts: the first part introduces the different understanding of the summary procedure among China and the foreign countries; the second part clarifies the value of the principle of"Efficiency first, justice together", which demonstrate that the implication of the summary procedure will not hinder the realization of the justice, in the contrast it will benefit the reasonable assignation of the justice; the application of the summary procedure is the objective need that the constitution protect the legal right of every citizen receiving just judicial judgment; from the dialectic view, justice and efficiency are relative in all time. There is no absolute justice and no absolute efficiency; the third part picks out the six features of the civil summary procedure.The Chapter 2 introduces the legislations of the foreign countries and Taiwan area and Hong Kong Special Administration Region on the civil summary procedure. Through the reviewing of the situation of the above regions and countries on the civil summary procedure system, we can conclude that the fast increasing caseload, the delay of the suit and the high lawsuit cost are the same global problems every country faces, but the detailed content of the reformation differentiates from one country to another according to each country's different culture and society with specialized features. In a whole, there are trends as followed: the first, to expand the complication scope of the summary procedure; the second, to improve the efficiency of application and degree of the summary procedure, predigest the suit proceeding; thirdly, to adapt to the legal demand in different level, realize the differential systemic design and application; fourthly, following the development of the information society, the modern technology will play an important role in the civil procedure and has a bright prospect. The Chapter 3 reviews the existing situation of China's civil summary procedure which is one of the keystones of this article. The author from a practical view analyses the newly encountered problems after the implement of the Regulations. This is the most important research achievement of this article. The main problems in the implement of the Regulation:1, our the Civil Procedural Code separates the summary procedure and the ordinary procedure and relates the summary procedure with the system of presiding cases with one judge, which is unique in the world;2, our legislation does not define the categories of the cases which shall applying the summary procedure. Therefore, the thin line between the summary procedure and the ordinary procedure is unclear. Making things worse, the clauses of the Civil Procedural Code on the summary procedure lacks realistic application in the practice departing from the objective rule of the epistemology;3, the Civil Procedural Code lacks systemic stipulations on the summary procedure;4, the thin between the ordinary procedure and the summary procedure is unclear;5, the shortage of the wiring measures of implement of the summary procedure and the rule-of-law spirit;6, the judgments of the cases presided by the summary procedure do not reflect the feature of the summary procedure;7, the difficulty of the service of the legal process still baffles the judicial work.The second part appraises the newly enacted judicial interpretations. In the all, the positive aspect is that:1, having established the right of the parties to choose the procedure;2, application of the assuring the address of service to solve the difficulty of the service of legal process;3, longing the time limit of the investigation by the parties and the applying the witness to be called;4, setting up the compulsory pre-trial procedure: the mediation procedure for six types of civil cases; 5, the limitation of the power of the adjudgement in the summary procedure;6, stipulations of the judges have the obligation of clarification.And the existing problems are:1, the judicial organs expand their power of making law through the judicial interpretations, and invade the domain of the legislation, which are mainly reflected in the Article 2, 5(2), 8(2), 15 of the Regulations;2, some stipulations are too oversimplified to be applied which lacking clear extension and maneuverability. It can be due to the coarse skill of the legislators which can be seen from the Article 2 and 14;3, the difficulty of service of the legal process can not be resolved effectively;The Chapter 4 is another keystone of this article, mainly focusing on the reformation of China's civil summary procedure. The detailed suggestions given by the author are as followed:1, make the summary procedure and the ordinary procedure collateral systems;2, clearly define the applying scope of the summary procedure;3, separate the panel-presiding system from the ordinary procedure. The ordinary procedure can be applied when the cases are presided by the panel as well as by the sole judge;4, establish the particular organ and personnel of the summary procedure, and separate the judges holding hearings before the trial from the presiding judges;5, found the system of the summary judgments;6, establish the uniform system that the parties can choose the trying procedure;7, simplify the judgment of the cases presided with the summary procedure.The Chapter 5 discusses the developing trend of the civil summary procedure. In the author's point of view, China should reform the judicial ADR system while the establishment of the small-claim trial proceedings should be careful till the conditions have ready. The last but not the lest important part is the conclusion that the author gives its thoughts on the summary procedure as a judge from a first instance court."Justice delayed, justice denied". Based on several small-claim cases, the author gives the opinion that justice compromises with efficiency shall and actually is correct under the background of the modern legal socially pressure. But the bottom-line is to assure the basic substance of"the Justice must be the Justice", and setting up multiple procedure according to the base of the multiple values while it must protect the procedure-chosen right of the parties. The parties must treat their procedure-chosen seriously and reasonably according to their value tropism.