The Classification Of Complexity And Simple In The German First Instance Civil Procedure

In order to manipulate the judicial resource rationally and to realize the goal of litigation economy and so on, most countries in the world have classified the cases according to certain criteria and incorporated them into different first instance civil procedure. In Germany the first instance civil cases are on the basis of the value of subject matter and the nature of the cases diverted to the procedure before the Regional Court, the procedure before the Local Courts and the small claims procedure. The procedure before the Local Courts with respect to the procedure before the Regional Court is simpler and more rapid, but the Local Courts have to bear additional instructions and teachings obligations. Small claims procedure produced relatively late, and has experienced several revisions. Small claims procedure belongs to the category of the procedure before the Local Courts. But unlike ordinary procedure before the Local Courts, according to "German Civil Procedure Law" article 495a, the application of the small claims procedure and the concrete structure of the procedure are decided by the judge discretion. This characteristic of the small claims procedure on the one hand make it possible to simplify and accelerate the trial procedure of small cases, on the other hand also because of the uncertainty of procedures caused by this characteristic make small claims procedure arising from the date on much scorn. With the development of theory and the accumulation of experience in judicial practice, the boundaries of the judge discretion in the small claims procedure has been more and more clear:The discretion of the judge may seem huge, but in reality it is strictly restrained by the purpose of law, constitutional procedure principles etc. At present in Germany the three kinds of procedures each are accounted for a fixed proportion of accepted civil cases of trial, among them by the procedure before the Local Courts concluded cases are accounted for the vast majority of civil cases of first instance concluded. The application rate of small claims procedure is still low, but Bundesrat has committed to expanding the scope of small claims procedure.In China although the ordinary procedure of first instance, the summary procedure and the in 2012 by civilian law revision established small claims procedure on the label are different from Germany, but from the perspective of the features by classification of cases it has a great similarity with the German triple layered structure. Because of this, the German classification of complexity and simple in the first instance civil procedure is worthy of our reference. However, due to different national conditions, the two countries should have different systems choice in some respects. In defining the scope of the summary procedure the regulation of our country can draw lessons from Germany combined with our existing legislation and take the value of subject matter, the nature of the case and the consensus of the parties together as standard. As for the trial subject, our country can set within the grass-roots courts summary tribunal, to improve the efficiency and professionalism of judges, and to further clarify the boundaries of the ordinary procedure and the summary procedure. In the concrete design of the process, lawmakers should integrate existing laws and judicial interpretations, and strengthen the obligation of the court to instruct the parties. Like Germany, in small claims procedure legislation China has also placed the small claims procedure as a subsidiary under the summary procedure. However, use of a single model with German legislation does not match China’s national conditions. China should make specific provisions for the scope and the concrete programs of small claims procedure in the framework of the summary procedure. In classifying the summary procedure and the small claims procedure, our country should take the value of subject matter and the nature of the case as standard while limiting use of party consensus standards. As for the establishment of the trial subject of the small claims procedure, China can refer to the experiences of some small-fast courts and set up special small claims tribunal in the grass-roots courts.