The Research On Balanced Mechanism Of Rights And Efficiency In Small Litigation Procedure

The system of “Small case” is a typical reflection which the legal system construction wa s guided by the thought of Law and Economics. The preset goal is through omitting appeals pr ocess, to simplify process of case and to save resources for judicial organs well as to improve the judicial efficiency. But in practice, this system has not fully exerted the desired effect, for the judge and the parties concerned in the race avoid it to some extent. The deep cause of this lies in the system designer has a wrong thought that the theory of the first instance is the last i nstance and the first instance is just wonderful are the same. Besides, “before the first” and “a fter”of trial program path is lack of planning, what's worse, the Law and Economic is not tota lly put into practice. “Small lawsuit”should be regarded as a complete process of litigation, its aim is not only the “economic” use of judicial resources, but to realize economic lawsuit right s.There are four parts in the main chapter. The first chapter focus on showing the basic fra mework of “small case” system, the purpose and theoretical background, and regarded the me thod of economic thought as the theoretical basis of the system, the system of “small case” is t he result of the Law and Economics thought. Its basic characteristic is to reduce costs, improv e the working by simplifying procedures, paying attention to mediation. The imperfection of t his system is the partial implement of the ideas of law and economics rather than of the “litiga tion”process.The second chapter mainly shows the present situation of the “small case” system and its main problems. This article mainly concluded the relevant problems into three parts according to the materials collected by the author which comes from the forefront of judicial work, namely, the first is emphasis on shortening the length of litigation partially. The second is the mandatory and irreversible mechanical system of and the third is the lack of remedy channels when the system is temporarily total disable. These problems caused forecast risks of cost which is eluded by everyone to both the judge and the parties. Thus the carefully designed “small case” is soon took place by the existing summary procedure, far from the original legislative purpose.The third part is the analysis and modification suggestions theory of “small case”defect. Analysis based on the three points of the litigation process, namely, “before the first”, “first” a nd “after the first trial”, the main defects of the existing system is to force the parties to solve all problems in “first” phase, the one-sided emphasis on improving the judicial efficiency, wit hout regarding the basic litigation rights of the parties, the resulting litigation risk and costs ar e not included in the law and economics thought in integral operation. In view of this, we sug gest that the change in the “small case” should change absolute mandatory to relative mandato ry. Giving objection rights to the parties before the fist instance on whether the case is simple.After the first instance, establishing a low threshold system and retrial procedure for the parti es. Strict conditions as well as the program approval standards should be stricter. Judges are al lowed to use discretion to convert the program award.The advantages of the current “small case”system is the simplification of the process, wh ile its drawback is that equating shortened chain to the efficiency of justice, the theory of defe ct distorted the function mechanism of law and economics.Therefore, we believe that the meth od used in empirical economics theory, on the one hand, we should pay attention to the econo mic analysis method, on the other hand we also should pay special attention to the analysis of the scope of the object and the inner link so that we could put the unified method to implemen t of the program of the whole process, avoiding the split of object, and the paragraphs fragme nts one-sided cost analysis.On the basis of perfection of the “methodology”, and to realize the transformation of law and economics, which is an important task currently application Beside s,the task in the “small case”the analysis of the samples in advance is needed.