On The Application Of Small Claims Procedure

The new revised version in August31,2012of "Code of the Civil Law of the People’s Republic of China"(hereinafter referred to as’Code of the Civil Law’)has established the procedure how to make small claims. As a striking feature and a valuable transplantation from the foreign legislative practices, the legislation of making small claims has attracted wide attention. However, the regulations concerning proceedings of making small claims are too simple to be feasible and functional. Because of the novelty of the new system and the lack of the knowledge, the public know little about its efficiency, convenience and swiftness. People conceive some doubts about it since it regulates that the first trial will be final and has the limited right of appeal. Being aware of its limitations and the present jurisdictive situation, the local court and judges take a prudent attitude towards small claims litigation.Therefore, the proceeding system of making small claims has been effective since the first of January in2013. But its application does not seem satisfactory. The writer explores the current situation of making small claim in the eight local courts of one certain city of Anhui province and analyzes the problems about its proceedings. Specifically speaking, it is hard to define what scope the small claim litigation can be suitable for. Secondly there is no consensus about whether the parties involved should be granted the options to select the proceedings.Thirdly, there is no regulation about how to inform the parties involved and make amendments when they show a disagreement about the final ruling. The local courts and lawyers are unwilling to initiate the procedure of making small claims as they are worried about the imposed pressure from the finality of the first trial and the inspection from their superiors. In this case the number of lawsuits which are suitable for making small claims are very limited. Even if the lawyers prefer to adopt the small claim proceedings, they tend to persuade the parties involved to make a compromise, even to fake the false cases in order to fulfill the task of reaching the certain number. The small claim proceedings have been deserted and distorted in many local courts, which is an unexpected awkward and embarrassing situation.The real modern jurisdictive system is characterized by its availability. It should be accessible by all the people not only theoretically but also practically. So such a regulation of making small claims should meet the subjunctive needs of the people besides its objective nature. Otherwise it will lose its original charm when encountering the difficulty in its application. In order to establish small claim proceedings which can fulfill the objective of serving the people, we have to adhere to our own conditions and learn the valuable experiences from the other nations and regions. Firstly, small claim procedure should regulate its scope of application. The determination should be made such as how much claims should be considered as "small". The mode should be established on the basis of the awareness of the genre and nature of such lawsuits, which we may utilize the dominant method of "proof and exception" and make a judgment on the basis of past experience as a complementary means. By this way we will deal with the discrepancy in the case of the criteria of registering or filing a case and the discrepancy in the case of its scope of application. Secondly the writer tries to analyze the reasons why the complainant, the judge, the lawyer take on a contradictory, cautious even hostile attitude towards small claim proceedings.On this basis, the party implicated is encouraged to engage in the litigation, and the lawyers should not be denied to get involved. Meanwhile the judges should improve their professionalism and competence. The harmonious relationship should be fostered between the judge and the lawyer under this circumstance. The positive attitude towards small claim proceedings should be cultivated among the complainant, the judge and the lawyer. Thirdly, as for whether we should grant the complainant the options, the writer points out we should duly respect the will of the complainants and let them make decisions. They should be permitted to choose a certain procedure to make claims. We can try to execute the method of combining the compulsory regulation and the optional application. In this thesis the writer also emphasizes the role of the judges in their interpretation of the finality of the first trial and the remedy channels. The special remedy mechanism for small claim complainant should be set up in order to facilitate the efficient small claim procedure and its subsequent remedy channel. Finally we should devise a supportive system to ensure the effective operation of small claim proceedings. For example, we can endeavor to make the combination of small claim procedure and ADR (Alternative Dispute Resolution), the establishment of executive guarantee for small claim litigation.Generally speaking, small claim procedure, as a new-born system, its improvement needs trial and error. We look forward to its maturity and its thrive during the process of experimenting and refining. We can live up to our initial expectation of serving the people and approaching the justice by our efforts of establishing and executing small claim proceedings.