The Reform And Perfection Of Civil Summary Procedure In China

Civil summary procedure, a special procedure for the relatively simple civil cases, is one of essential products when civil procedure develops to a particular phase. It is applicable to those cases, in which the value of the object of action is little and the disputes are trivial in character. Its establishment is helpful to simplify judicial proceedings, eradicate judicial delay, minimize judicial costs, and speed up the trial of cases. Hereby, it will not only promote the public to get close to the judiciary and take advantage of the legal weapon, but also help the court solve quickly civil disputes. Thus, the procedure makes civil trials develop for the need of social development. The paper starts with the basic theory of civil summary procedure, then introduces and analyzes civil summary procedures in some representative countries from the two legal systems. After that, the author analyzes some existing problems involving civil summary procedure and the legal practice in China. 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 article consists of four parts.The first part of the paper talks about the basic theory of civil summary procedure. First, the author tries to define Chinese civil summary procedure on the basis of comparative analysis of the two legal systems. Then, the author expatiates to the theory of civil summary procedure, which is mainly composed of three aspects: the convenience for the litigant to take advantage of lawsuit system equally and fully, the principle of applicable costs, and the balance between litigation justice and benefit.The second part talks about the legislation in some countries of different legal system. Civil summary procedure is regulated at large in the two legal systems. The article makes a review on the legislation of several countries and comes into a conclusion on the trend of civil summary procedure. Based on the comparative study of some countries from the Civil law System and the Common Law Systemrespectively, we can probe into the inner regularities and trend of civil summary procedure. Drawing on the common characteristics, we can think further about the Chinese civil summary procedure reform.The third part analyzes Chinese civil summary procedure. Against the present situation, the author finds out some problems in Chinese civil summary procedure. We can say that the jurisdiction of such cases are unclear, and the transform between the summary proceeding and the ordinary proceeding isn't regulated clearly. Furthermore it can't deal with the relation between fairness and efficiency correctly. Then, the author analyzes the reasons .The last part discusses the reform and perfection of Chinese civil summary procedure. This part is divided into three areas. The first area is about proper orientation for the reform of summary procedure. Specifically speaking, the following three balances should be achieved: the balance between the expansion of the judge's commanding right and the endowment of the litigant's subjective right; the balance between the expansion of the applicable scope for summary procedure and the guarantee of the litigant's procedural benefit; the balance between substantive and procedural justice. The second area expounds the concrete assumptions for the reform and perfection of Chinese civil summary procedure. The author suggests to put up specialized organizations and personnel applicable to civil summary procedure, to further expand the applicable scope for civil summary procedure, to establish pre-trial conciliation, to further simplify legislative procedure, and so on. Thirdly the author discusses the necessity and some concrete assumptions of the establishment of small amount lawsuit procedure considering the concept and characteristics of this procedure.