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Draft Amendment To Civil Procedure Establishes Small Claims Procedure

2011/11/8 14:06:00 24

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The draft amendment to the civil procedure law establishes a bright spot in the small claims procedure.
Pilot half a year to improve handling efficiency, ease cases, many people less contradictions
Small quick trial forced the first instance final trial to trigger relief disputes

One of the highlights of the draft amendment to the civil procedure law is the nature and application of the summary procedure and the small claims procedure. Effect And so on.

"This amendment establishes a different type of civil procedure, which is completely different from summary procedure, small claims procedure. Legislator It also gives it a unique system function and opens up a new era of China's small claims system. Xiao Jianguo, a professor at Renmin University of China law school, commented.

In fact, the small claims system has been able to trace in the judiciary: in April 8, 2011, the Supreme People's Court issued a notice to determine the 26 grass-roots courts in the country to carry out the pilot work of small quick trials.

In more than half a year's experiments, Small claims What institutional obstacles do exist in the system and what legislation needs to be supported? Recently, the reporter interviewed the relevant pilot courts.

　 The tribunal is shortened greatly.

"I always thought it would be a lot of trouble to take a lawsuit. It would take several weeks to finish it. I didn't expect to finish it in half an hour. It was too fast." In May 17th, the plaintiff Liu's road traffic accident compensation case was concluded at the traffic court of the Yinzhou District people's Court of Ningbo City, Zhejiang province. The mediation letter he wrote was "(2011) Yongyin speed first". This is the first case in which the Supreme Court has been determined by the supreme law as a trial trail of small quick trials.

At present, the contradictions and disputes caused by various interest demands continue to increase, and a large number of lawsuits enter the judicial process. According to statistics, from 1991 to 2010, the number of civil cases received by the national courts increased by an average of 10.66% per year. Therefore, in the short term that the judicial strength can not be effectively changed, we need to solve the contradiction between "many people and fewer cases". Only by reforming the existing case handling mechanism of the court, can we simplify the procedure and improve the efficiency of handling cases by simplifying the cases. It is against this background that the reform of small claims system is coming out.

Zhu Yinchun, President of the Yinzhou small court, said that from May 1st to October 31st, the Yinzhou court handled 2955 cases of civil and commercial cases, of which 912 were eligible for a small amount of quick judgement under the supreme law. Among them, the parties choose and apply 310 small quick cuts, the total number of days handled is 746 days, and the average number of days handled is 2.41 days.

The first instance final hearing triggered relief worries

Zhu Yinchun told reporters that small claims are first instance final, which is completely different from the existing civil procedure law applicable to ordinary civil cases. How to protect the relief rights of the parties has also become the focus of social concern and debate.

During the trial, Zhu Yinchun found that many of the parties had scruples about the first instance of the first instance, and believed that if the court of first instance handled the case unfairly and the objection examination was handled by the same court, they would lose second relief opportunities. In addition, because of the relatively simple and flexible operation of the small speed cutting procedure, some of the parties concerned are worried about the excessive discretion of the judge and the normal exercise of the right of action. Therefore, the parties, especially the defendant, are unwilling to choose a small speed cutting procedure.

"It is precisely because of such worries that between May and August, the Yixing court met 986 cases of small quick trials, while only 51% of the cases applied for small speed cuts." Zhou Xin, director of the Research Office of the people's Court of Yixing City, Jiangsu province.

The amendment to the civil procedure law does not give the parties the right to reconsider, which means that the parties may apply for retrial. Zhu Yinchun believes that from the existing civil cases to the first instance and the final judgment of the first instance, the parties need to change the concept of a buffer process. If the law stipulates that the parties can only pass the retrial, the existing retrial procedure may aggravate the workload of the higher court, and it will also lead to letters and visits. Second, setting up the right of reconsideration of the parties is also a common practice of small claims in the world. The right of reconsideration is more convenient to the parties concerned than the right of retrial application, and is more conducive to safeguarding the legitimate rights and interests of the parties concerned. It is also an important embodiment of the people's court's careful handling of cases.

　　 The 5000 yuan of the case was accused of being too low.

The draft amendment to the civil procedure law stipulates that the scope of small claims shall be civil cases with a quota of less than 5000 yuan.

"For the scope of acceptance of small claims, the law should be scientifically and operable." Zhu Yinchun thinks that legislation should adopt enumeration to clarify which disputes can be applied and which situations are not applicable. At the same time, in order to prevent abuse of court rights, there should be no provision for legislation.

It is understood that the scope of the small claims under the supreme law is 50 thousand yuan or less, and several cases are cited. The court of Yinzhou determines that the amount of the target is less than 50 thousand yuan, which includes the cases of lending, buying, selling, leasing and borrowing, which are clear in the relationship between rights and obligations. The 5 categories of cases, such as clearly defined responsibilities, compensation for damages in road traffic accidents and so on, are applicable to small claims.

"It is necessary to limit the amount of small claims. However, due to the imbalance in economic development, the legislative limit of 5000 yuan seems to be too low." Zhu Yinchun said.

Expert opinion
Dialectical view of petty lawsuit system

Xiao Jianguo, a professor at Renmin University of China School of law, told reporters today that the introduction of small claims procedure is milestone, but its positive value of providing cheap justice and timely justice is often exaggerated by reason. This is because the first instance adjudication of small claims has the advantage of resolving disputes in time and avoiding tardiness of justice, but it is also worth worrying about whether this advantage can be exerting and whether it will bring some by-products.

Xiao Jianguo believes that, first of all, this advantage may be absorbed by court mediation. After all, court mediation also has the effect of first instance adjudication. Under the current judicial policy of mediation priority and the baton of performance appraisal with emphasis on the withdrawal rate, how far can small claims go?

Second, this advantage may provide a legal basis for the court to strengthen mandatory mediation. In the past, court mediation should follow the principle of voluntariness and legality. If the parties persisted in not accepting the mediation plan, the court could only decide in time, and the parties could not appeal to appeal. With a petty lawsuit procedure, a civil case under 5000 yuan, the court can not take into account the wishes of the parties, and use judgment means to facilitate the parties to accept mediation.

Finally, the civil cases involving less than 5000 yuan, which are handled by the basic courts and the tribunals, are generally private disputes, such as private loan, traffic accident damages, medical tort and personal injury compensation. The disputes are not very high, but the parties are often antagonistic and the evidence is not easy to find. If the court does not take the initiative to investigate and collect evidence, find out the facts, distinguish between right and wrong, and as in the past, "who advocates who gives evidence", once the judgment does not have the opportunity to appeal, then, the first instance trial of small claims proceedings may lead to contradictions among the parties. Therefore, the small claims system needs to be treated dialectically.