Discourse About The Interchange Between Simple Procedureand Common Procedure

Throughout those books and magazines of law, home and abroad, we can rarely find thepaper about the interchange between simple procedure and common procedure. By the adviceof the legal procedure, the scholers of the civil procedure law don’t agree with interchangingprocedures optionally. Over the years, our academic specialists and scholars has not paid theirattention to the interchange between simple procedure and common procedure, the legislationalso has many loopholes. There is no uniform standard for the courts to comply with, leadingto optional interchanges in the judicial practice. The author don’t agree with the optionalprocedural interchange, but this does not mean denying the interchange between simpleprocedure and common procedure. When the case put on the record,the standard which ourgrass-roots court complied with is vague, the possibility of applying error procedure increases.If the mistake is not allowed to be corrected, the litigation rights of the party or the judicialresources may be violated. The procedure is not unchangeable,and the stability of theprocedure is not equal to the rigidity. To decide whether interchange simple procedure andcommon procedure or not,we need measure the value of various aspects in cases. How tointerchange?What is the efficacy after the interchange? To prevent optional procedualinterchange, new legislation must be used to regulate these problems. Through the legalbasises of the interchange between simple procedure and common procedure, this articleconfirms that the system is necessary. On the reference of the Germany, Japan and Taiwanarea’s legislation, the author put forward some Suggestions to perfect the system of theinterchange between simple procedure and common procedure.This article consists of four parts:The first part is the summary intrduction of the interchange between simple procedureand common procedure. This paper discusses the meanings of the interchange between simpleprocedure and common procedure and the difference with the related conceptions of the civilprocedure law. The legal basis mainly include three parts, the discretionary power of Judges,civil procedure right of election, the value of the justice ande the efficiency of the civillitigation. The discretionary power of Judges is the comprehensive effect of a variety ofreasons. We can normed it both from internal and external causes. The legislation of civilprocedure right of election is the guarantee of the judicial practice. Justice and efficiency isthe theme of the court’s works in the21st century, the trial program weigh between the two value, no absolute justice and no pure efficiency.The second part mainly analyzes our rules of the interchange between simple procedureand common procedure. This part discusses present civil procedure law and the relevantjudicial explanations about the interchange between simple procedure and common procedureand the current judicial practice. The elements are mainly about procedual elements,includingsubjective factors, time requirment and formal requirments. The entitative element onlyincludes complex details of the case. This efficacy is consistented with the classification, theefficacy of the simmple procedure changes into common procedure maybe differrent with theefficacy of the common procedure changes into simmple procedure.The third part mainly introduces the Germany, Japan and Taiwan area’s provisions aboutthe interchange between simple procedure and common procedure. Both Germany and Japanwhich have special court to apply simmple procedure are one-way mode, only simpleprocedure interchanges into common procedure. Taiwan area is two-way mode, simpleprocedure and common procedure can interchange into each other, and has simple courtroomto trial simmple procedure cases. Comparision among the three countries or regions,combined with our judicial status, we must have the optional reference.The fourth part mainly refers to the author’s Suggestions, divided into system basisesand specific system designs. To perfect the basises, there ara three suggestions, clear the scopeof the simple procedure; clear the partyes’ civil procedure right of election and the judge’sinterpretation power; increase the kinds of alternative procedures. The design of specificsystem is as followings:install special simple courtroom; endow judges the decision powerfrom common procedure to simmple procedure; clear the elements and efficacies of theinterchange between simple procedure and common procedure.