Research On The Mechanism Of Separation Of Complicated And Simple Cases In Civil Procedure

In early 2020,the Supreme People’s Court has formulated and issued" Pilot Program for the Reform of Separation of Complicated and Simple Cases in Civil Procedure,"Measures for the Pilot Implementation of the Reform of Separation of Complicated and Simple Cases in Civil Procedure ",the two-year pilot of the reform of the separation of complicated and simple cases in civil procedure was quickly launched in courts across the country.This paper refers to the current situation of the separation of complicated and simple cases in civil procedure from the legislative and judicial aspects by investigating the difficulties encountered by courts in various places and the reform experience obtained.It analyzes the problems encountered in the reform,such as unclear standards of "complicated" and "simple",too narrow effect of judicial confirmation,"bundling" of ordinary procedure and collegiate system,high threshold for application of summary procedure and small claims procedure,immature problems of electronic litigation procedure rules,the lack of supporting mechanisms,etc.On the basis of the theory and practical achievements of the judicial reform of the separation of complicated and simple cases in civil procedure from abroad,the paper starts from five aspects: improving the multiple dispute resolution mechanism,improving the mechanism of separation of the complicated and simple cases during the litigation,improving the litigation mediation system,improving and expanding the scope of application of the sole-judge trial system,and improving the electronic litigation rules.Put forward suggestions to lay a certain theoretical and practical research foundation for the next step of the reform of the civil procedure.Apart from the introduction and conclusion,the paper consists of five parts,and starts from the conceptual basis of the separation of complicated and simple cases in civil procedure,the investigation of the mechanism for the separation of complicated and simple cases in civil procedure outside the territory,the status quo of legislation and judiciary,the operational difficulties,and the improvement of the system.The main contents of each part are summarized as follows:The first part revolves around the idea of separation of the complicated and simple cases in civil procedure.The connotation of the separation of complicated and simple cases in civil procedures is a process of continuous development.At present,the separation of complicated and simple cases refers to includes both the macro level and the micro level.It means that the courts actively participate in social governance,establish a multiple dispute resolution mechanism,guide the parties to choose non-litigation methods to resolve conflicts and disputes,and promote social harmony and stability;Internally,the court adopt differentiated trial procedures to handle different cases according to the scientific criteria for distinguishing complicated and simple cases,rationally allocate judicial resources,improve judicial efficiency,and meet the diverse,efficient,and convenient dispute resolution needs of the people.The mechanism of separating complicated and simple in civil procedure procedures is to alleviate the contradiction of “too many cases” in the courts,promote judicial justice and improve judicial efficiency,meet the diverse judicial needs of the people,improve the socialist legal system with Chinese characteristics,and promote the modernization of the national governance system and governance capacity,etc.In terms of the standard of the complicated and simple diversion mechanism,the "complicated" and "simple" cases are not only affected by the cause of the case,the amount of the subject matter and other factors,but also disturbed by various factors such as "delivery",which is difficult to identify effectively and quickly.In practice,local courts have adopted the mode of "cause of action + subject amount + other elements" for qualitative analysis on the standard of complicated and simple diversion.Although it has merit,it is not accurate enough.We can learn from the hierarchical method and quantitative analysis method in management,adopt the form of "element + weight score",scientifically set the standard of diversion of complex and simple cases,set different weight scores for different elements,count the scores of each element after the case is filed,and then determine the standard value of complex and simple cases according to the actual situation of our court.The standard value within the standard value is simple cases,and the standard value above is complex cases.Afterwards,it analyzes the theoretical basis of the separation of complicated and simple cases from the perspective of economic theory,classification management theory,and legal theory.In economics,the "cost-benefit" theory requires that in a civil litigation case,the case should be concluded as soon as possible with the least resources and the shortest time,and the maximum benefit can be obtained with the least litigation cost.The "economic man" theory believes that the parties and the judge are all "economic people",and their characteristics are self-interest.A corresponding system of sorting the complicated and simple cases is needed to separate the complicated and simple cases,and separate the fast and slow cases,so as to promote the rational selection of the best dispute resolution procedures by all parties,thereby reducing the cost of the whole society.From the perspective of classification management theory,the separation of complicated and simple is to carry out classification management,to divide cases according to complicated and simple,to integrate and redistribute personnel and resources,so as to maximize the utilization of judicial resources.From the perspective of legal theory,the separation of complicated and simple should meet the requirements of Programmatic and legitimacy,pay attention to judicial justice,and take into account judicial efficiency.Furthermore,it describes the background and analysis of the current situation of the reform of the separation of complicated and simple cases in civil procedure.The long-term serious imbalance between the number of cases and the number of judges has led to the increasingly prominent contradiction of " litigation explosion ".With the deepening of the case filing registration system and the judge quota system,the threshold for filing a case has been lowered,the number of judges has been controlled,and the contradiction has further intensified.So as to resolve the contradiction between people’s growing demand for diverse judicial affairs,the separation of complicated and simple cases has become an important judicial measure to deal with the contradiction of " litigation explosion s".It is worth paying special attention to the management theory in classified management,which divides management into four types of management: target management,scientific management,problem management and people-oriented management,which provides us with the goals,identification standards,It provides a good theoretical tool for in-depth investigation and analysis of operational difficulties and seeking perfect countermeasures in terms of program application,talent and assessment guarantee.The second part investigates and studies the related mechanism of the separation of complicated and simple cases in extraterritorial civil litigation,sorts out the useful experience of the United States,Britain,Germany,and Japan in the separation of complicated and simple cases,and hopes to be able to learn from the improvement of the mechanism for the separation of complicated and simple cases in our country’s civil procedure.Both the civil law countries and the common law countries have encountered the judicial problem of "explosion of lawsuits" and "small number of judges" in the last century.These developed countries have formed characteristic systems in the process of solving this problem.Civil procedure in the United States are divided into two stages,namely pretrial proceedings and trial proceedings.The pretrial procedure is a procedure that ends a case without trial,and most cases are ended through settlement or pretrial settlement after the discovery of evidence.Active case management is a defining feature of the pretrial process in civil litigation in the United States.It can be said that active case management has constituted the core feature of pretrial proceedings in the United States,together with the notification procedure,the free discovery procedure,and the summary judgment procedure.Case management has gradually evolved from a rational plan for handling complicated and protracted litigation cases to a system that is universally applicable to the entire civil litigation practice.The reform of civil procedure in the UK is to implement judicial ADR.Before the parties may file a lawsuit,they will conduct substantive negotiations with the other party and propose feasible dispute resolution solutions,thereby diverting cases,reducing costs and improving efficiency.Judicial ADR is considered to be the main measure to solve the problem of British civil procedure reform and reduce the pressure of civil procedure.The UK’s pre-litigation code of conduct also plays a very important role in promoting case diversion.Germany strengthens centralized debate through pretrial procedures,adopts a centralized trial mode,simplifies and accelerates litigation procedures,and divides cases.Germany emphasizes the mediation system,simplifies supervision procedures and limited appeals,and further promotes the separation of complicated and simple cases and the efficient transfer of cases.Japan has carried out the reform of "de-judicial centralism" and increased the exploration of diversified dispute resolution.On the one hand,according to the complication and simplicity of the case,the differentiation of the court’s internal trial procedures is realized;Japan’s dispute sorting procedures to solve the problem of "too slow,too expensive,and incomprehensible" in Japanese civil litigation.These reform measures have useful reference significance for the separation of complicated and simple procedures in my country’s civil procedure in terms of value orientation,functional orientation,procedural paths,and the development of cultural traditions.The third part investigates the current situation of the separation of complicated and simple cases in civil procedure from the legislative and judicial aspects.From the perspective of legislative history,in order to alleviate the contradiction between the diverse judicial needs of the people and the limited judicial resources,the mechanism of separating the complicated from the simple came into being.The establishment and improvement of the mechanism for separating the complicated and the simple has gone through a trial at the grass-roots level,through overall planning by the Supreme People’s Court,fixed in the form of judicial opinions,and then from a higher level of“modernization of the national governance system and governance capacity”,the process of strengthening top-level guidance,landing in various places,and finally fully incorporating it into civil litigation legislation.From the perspective of judicial status,the pilot areas for the separation of complicated and simple reforms have continuously established and improved systems and mechanisms,and the pilot work has been carried out in a steady and orderly manner.This paper takes Shanghai Court as a sample to study the specific situation and problems of the reform of separation of complicated and simple cases in judicial practice.The fourth part studies the dilemma of the current mechanism of separating complicated and simple civil proceedings,according to the management theory,from the four management dimensions of objective management,scientific management,problem management and people-oriented management.Starting from management by objectives,there is an evolutionary process in the reform of the reform of the separation mechanism between complicated and simple,from within the judiciary to solve the contradiction of "too many cases ",it gradually turned to the "binary" goal of not only focusing on the judicial efficiency within the court,but also focusing more on the social collaboration to establish a "one-stop multiple dispute resolution mechanism".In the process of realizing this goal,the biggest dilemma is the connection between social dispute settlement and judicial dispute settlement.In particular,the judicial confirmation procedure does not run smoothly,which is reflected in three aspects: not many choices of judicial confirmation procedures,strict initiation of judicial confirmation procedures,and unclear legal provisions for judicial confirmation.In the perspective of scientific management,the most important thing in the scientific design of the separation system of complicated and simple is to reasonably define the identification criteria of "complicated" and "simple" in cases.Then,it analyzes and researches the dilemma of the mechanism of separation of the complicated and simple cases in civil procedure.From a macro point of view,the identification and separation of "complicated" and "simple” is not smooth.By analyzing the criteria of "complicated" and "simple",it is found that the three judgment criteria of "clear facts","clear relationship between rights and obligations"and "little disputes" are too principled and vague,and lack operability.Difficulty in distinguishing,difficulty in serving affects the identification of "simple" cases;the separation of "complicated" and "simple" in various procedures is not precise,and the tiering of complicated and simple cases is not detailed and cohesive enough It is also not smooth;"complicated" and "simple" intelligent diversion is not in place,the disadvantages of manual diversion are frequent,and the exploration of intelligent diversion is also insufficient.In the perspectives of problem management,the summary procedure and small claims procedure have a high threshold,and the diversion effect of the simplified case cannot be fully exerted.Ordinary procedures are "bundled" with the sole-judge trail system,and problems such as the unclear scope of application of the sole-judge trail system,the unclear connection of procedures,and the imperfect supporting systems arise.The promulgation of the judicial interpretation of the electronic litigation rules has filled the gap in the online litigation system,and there is also room for improvement as a new system.In the perspective of people-oriented management,management is people-centered.The reform of the separation of complicated and simple needs not only to stimulate the enthusiasm of judges,but also to use scientific and technological power to reduce pressure on judges,to help the separation of complex and simple,and to ensure the effective implementation of various separation mechanisms.However,the lack of a professional complicated and simple trial team,a suitable performance appraisal mechanism,and advanced information technology support has affected the performance of the separation complicated and simple mechanism.Whether analyzing the identification and separation of "complicated" and "simple" from a macro perspective,or analyzing whether they play the most important role in the separation of complicated and simple cases from specific procedures such as judicial confirmation procedure,small claims procedure,summary procedure,ordinary procedure,and electronic litigation procedure,the results of optimization were found to be faced with operational obstacles and difficulties.The fifth part focuses on the improvement of the mechanism of separation of complicated and simple cases in civil procedure.Firstly,it is necessary to further improve the "one-stop multiple dispute resolution mechanism",by improving the specially-invited mediation system,refining the jurisdictional rules for judicial confirmation cases,optimizing judicial confirmation procedures,and improving the judicial confirmation mechanism,improving the assessment mechanism,a large number of "simple" cases are diverted before litigation.Secondly,in view of the predicament of poor identification and separation of "complicated" and "simple",this paper proposes to clarify the identification standards of "complicated" and "simple",improve the identification mechanism of "complicated" and "simple" programs,and build intelligent "complicated" and "simple".Thirdly,we should improve the mechanism for separation of complicated and simple cases in civil procedure,by strengthening small claims procedure,improving summary procedure,and improving service procedures,so as to achieve a "simple" trial of "simple" cases.Fourthly,we should improve and expand the scope of application of the sole-judge trial system in civil litigation again.By clarifying the standards for the scope of application of the sole-judge trial system,refining the rules for procedural transformation,and improving supporting mechanisms,the "unbundling" of ordinary procedure and the sole-judge trial system is realized,and the scope of application of the sole-judge trial system is expanded.We should optimize the allocation of trial resources.Finally,improve the electronic litigation rules.By refining the asynchronous trial rules,gradually realizing the publicity of online court trials,equally protecting the litigation rights of the parties,and ensuring the security of online court trial information,it will further enhance litigation convenience,save litigation costs,and protect litigation rights from the perspective of the parties,improve the quality and efficiency of trials,promote judicial publicity through technology empowerment.