On Improvement Of Small Claims Procedure In China

Small claims procedure, initially instituted at the beginning of the 20th century in America, through application and development in France, Britain, Japan, Germany and Chinese Hong Kong, has become an indispensable component of civil procedure law. Viewed from the practices in different countries, promotion and perfection of small claims procedure is a key means to strengthen social and legal notions and to push the legal construction and is an actual choice in relation to solidifying judicial functions and operational efficiency and taking advantage of judicial resources. The newly revised Civil Procedure Law has been formally in effect since January 1,2013, which symbolizes the formal institution of the small claims procedure in China. However, the stipulations of small claims in the Law are very simple, and due to its lack of details concerning numerous key contents and links, small claims procedure is not welcome in actual practice.The current article mainly studies two problems. The first is about what types of problems have cropped up with reference to small claims and the second concerns how to develop and complement in terms of those problems. The current article, based on previous studies by scholars and experts in China and abroad, on close examination of small claims procedure in America, Britain, Japan and Chinese Taiwan, and by means of synthesis and analysis, centers around those two problems. By so doing, the similarities and differences in terms of small claims procedure between various countries and regions are discovered, which may serve as reference for perfecting mechanisms of small claims procedure in China. On the basis of that, by analysis and comparison of stipulations regarding small claims procedure in China and systems in foreign countries, weaknesses in relation to small claims procedure in China have been uncovered. Such weaknesses are reflected as follows: summary procedure is not independent, the value of the object of action is hard to determine, the category of cases is ill-defined, the right of a party to choose the procedure is disregarded, no consideration is given to a party’s capacity as a subject, no relief mechanism is available and the system of execution is inadequate.In terms of problems or weaknesses discovered, the current article, on the basis of borrowing much from successful experiences of small claims in China and abroad and in line with practices in China, has put forward solutions. First, small claims procedure ought to be established independently with reference to legislation, which accords to small claims legal status similar to summary procedure and general procedure. Second, range of application of small claims ought to be improved, and a specialized court for small claims needs to be set up, including clarifying the amount of object of small claims cases and the category of cases. Third, the process of action ought to be streamlined judicially, including simplifying registration process, curbing the frequency of lawsuits, simplifying the process of court hearing, simplifying the formation of judgment, creating flexible mode of delivery, perfecting the system of execution and specifying the time period for trial. Fourth, parties ought to be invested with the right to choose a procedure and relief mechanisms ought to be improved. In the meantime, the article advances the points new to predecessors and the pitfalls in the course of research, due to our own limitations. It is hoped that the article may shed some light on succeeding research and that small claims procedure can realize its full worth in the future practice.