Study On Remedial Mechanism Of The First Instance In Small Claims

With the appearance of social transition period and the constantly higher legal consciousness of citizen constantly,the number of civil disputes is showing a rising trend.When litigation has become a public way to resolve the dispute,small claims take increasingly important in civil cases.Under the circumstances where the greatly increasing rate of demand for justice is far increased than the growth rate of the case judicial resources,small claims procedures was initiated with advantages of efficiency,convenience and low cost.It has become a hot issue since small claims procedures were formally written in the Civil Procedure Law in 2012 after much trial.Finally,The Civil Procedure Law established the first instance being the final instance in small claims,which has a great significance to take advantage of small claims and improve judicial efficiency.Besides,it is also more essential to promote primary court resolve small dispute efficiently and reduce the litigation cost.However,contrary to the second instance as the finality,the one-cut first instance as the final stance is difficult to protect the legitimate rights and interests of litigants.And the imperfect system makes its limitation and problems expose in the juridical practice.Moreover,this narrow system makes the retrial become the only remedial way,causing a problem whether the pursuit of justice or efficiency is more important.These two things must become a win-win in order to improve judicial progress.Therefore,it is necessary to make the perfect small claims system especially the integrated system of remedial mechanism.This study analyzes the small claims procedures from two sides.On the one side,from the system aspect,the study interpreted the remedial mechanism of the first instance in small claims case,analyzed the advantage and disadvantage of the first instance as the finality,and discussed the value of the remedial mechanism of small claims.On the other side,from the practice aspect,the study presented the unreason of the retrial and analyzed the increasing risk of non-legal way as petition to maintain the legal right.At last,the study analyzed the abuse of the objection right because of the lack of the remedial mechanism.In a word,when the litigious rights cannot be guaranteed,the civil have to try their best to combat and to protect their legal right.This must lead to litigation delay and cost improvement which deviates from the initial intention of legislation.This study discussed the reason of the lack of remedial mechanism of small claims in essence to complete the system of small claims.Combining theory and practice,the study tried to compare different remedial mechanisms of small claims from different regions as the United State,the United Kingdom,Japan and Taiwan in order to use for reference and emerge an efficient and just way.‘Special objection' was proposed to establish for the sake of completing the remedial mechanism.Meanwhile,the supporting system should be improved to reduce the unnecessary remedy.Accordingly,the value of small claims with the first instance being the final instance can be realized,as the American scholar Geoffrey C.Hazard Jr.and Michele Taruffo said “Small claims is the best procedure system so far.”...