The Improvement Of The Theory Of Small Civil Proceedings In Our Country

Abstract:Where there is right, there is relief, this is one of the important features of the country under the rule of law. Minor civil rights have been violated, way countries should provide the right remedy, safeguard the legitimate rights of citizens. With the rapid development of our social economy, social life, economic disputes are becoming more and more diversified, the small rights dispute is more frequent, but our country have in view of the small rights dispute no special procedures set and the corresponding relief mechanism, the summary procedure ordered to remedy, but the limitations of our summary procedure make the small rights dispute even by simple procedure to remedy also reflects the "non economic" way of relief, many small owners weigh the pros and cons and then have to stop in the court outside the gate, it will hinder the people "access to justice" and "access to justice" rights, people need and solve small rights dispute matching the relief procedure to realize their own small rights. At the same time, the court in China is facing great pressure of the trial, the explosive growth of judicial resources and limited to cases of synchronous growth, so how to alleviate the litigation between the limited judicial resources demand and increasing the public life in modern society the contradiction? We can’t hope to increase the judicial resources without limited to meet the people’s growing demand for the procedure, which is a rational society of rule by law country cannot make choices. At this time, improving the efficiency of the use of judicial resources through the rational allocation of the maximum, to play the greatest degree of judicial efficiency is a legal issue that can not be avoided in front of us. To have the whole world in view, many countries have faced or is facing which our country is facing the same case much pressure, it lets us begin to pay close attention to the development of small claims procedure mechanism which have relatively been matured that abroad has set up, small claims procedure is a foreign system of a field called products make people "access to justice" judicial reform in sixty years of the twentieth Century, the establishment of the procedure is specifical for the small right relief. although the specific provisions for the lawsuit mechanism is not the same, but the small claims procedure which is efficient, convenient, low cost are the common features ideas of legislation in the judicial practice, the effect is very significant, largely alleviated the contradiction between people litigation and trial pressure demand. Therefore, through research and judicial practice of China’s grass-roots court experience for many years. China’s legislature finally revised in2012the "PRC Civil Procedure Law" article162nd of the relevant provisions of the increase of small claims, this is the demand to justice and protect small amount rights with the legal response. But in view of legislation is rigorous, careful consideration, so the legislation of our country authorities on lawsuit is only a specific operation, each link has no legislated, judicial practice around the court on the concrete operation procedures stipulated in the rules applicable in different areas. We must recognize that, the construction of our country’s perfect procedure goals are still a long way to go. This paper mainly adopts the comparative analysis method and empirical research methods, firstly the basic theory problems of small claims procedure is mainly described, and then the abroad small claims procedures were compared and analyzed, and then makes an empirical study of the China’s small litigation status of legislation and judicial practice in the specific operation status,and then analyzes the need and feasibility for constructing the specific improvement of the litigation procedure, and finally puts forward the concrete suggestions of constructing conforms which can help improve the specific procedure in our country national condition, hope this paper on the small claims procedure can benefit the construction in improving the specific for China’s small claims procedure. This paper is divided into three parts which has introduction, body and conclusion. The body is divided into five chapters.The first chapter is an overview of the small claims procedure. First, the concept of small claims procedure mainly is about the definition positioning features and functions of the basic theoretical issues. Secondly, it discusses the origin and development of small claims procedure from two aspects, including the civil justice reform in the world and Chinese civil judicial reform to study. Once again, the mechanism of the small claims procedure and other litigations and alternative dispute resolutions are analyzed to determine the advantages of small claims procedure. Finally, the legal basis of small claims procedure is described from the view of jurisprudence.The second chapter expounds two legal representative countries procedure legislations, including continent area of our country Taiwan and Japan and American and Britain law system. Then, compare the common rules and individual differences of small claims procedures form two law legislations, finally draw some beneficial enlightenment for our country.The third chapter mainly carries on the analysis for the present situation of our country about the specification of the small claims procedure, including the legislative situation and judicial practice, at the legislative level, mainly analyzes the small claims procedure existed in our country’s legislative status and problems in legislation, judicial practice mainly focuses on the analysis of the lawsuit suitable present situation and investigation which author learn about in the Gui Lin city of grassroots courts on their respective, pointed out the problems encountered in the application of each procedure and some common problems.The fourth chapter emphatically from some levels to demonstrate the necessity of perfecting the petty lawsuit procedure in China and has the feasibility conditions. the necessity which is interpreted four levels, including limitations, social needs, the status quo of China summary procedure standard judicial practice and the world trend of judicial reform. The feasibility of small claims procedure perfect is mainly to demonstrate the social environment and the rule of law in our country results which has the feasible conditions.The fifth chapter firstly proposes the effective prevention of specific improvement the small claims procedure in line with China’s national conditions which should been paid attention to the abuse of litigation and the judges too much discretion problem, the second part puts forward the legislative mode selection for improving small claims procedure in our country, the last is the main body of ideas, including eight suggestions, which are the applicable scope, The start of the program, Proceedings of simplified, Remedy mechanism, The idea of execution mechanism, The process goes on to the transformation, The judicial referee docking.