Research On The Power To Initiate Small Claims Procedure In China

Being a product of our country’s deepen reform of the judicial process,small claims procedure take the responsibility for the easier using of civil procedure,safeguard judicial impartiality and solve the contradiction of limited judicial resources with boundless civil litigations.But since Small claims procedure trial to formally established,over the past few years,the number of Small claims procedure in civil litigations is still low,the effect of Small claims procedure is not obvious,did not achieve the legislation goal.Why the utilization rate of Small claims procedure is low,one of the reasons is the Small claims procedure legislation system is not very mature,judges do not konw to choice Small claims procedure or not.Especially on the issue of the power to initiate small claims procedure,although the law is not clearly defined mandatory or non-mandatory,but we can infer from 162 clause <Civil Procedure Law>that Small claims procedure is mandatorily used.It is not reasonable for small claims procedure to adopt a mandatory application of the model no matter what the case is,when small litigation legislation is not mature,so that in judicial practice,the parties or the court to adopt various methods to avoid the use of small claims procedures.This paper,based on the power to start Small claims procedure,analysis of the theoretical basis of small claims procedure,drawing lessons from foreign legislative practice and domestic scholars,analyze and study the power to start small claims procedure shoulded be distributed in what way,hope to enrich Small claims procedure related theory,which guides Small claims procedure procedure,improve the utilization rate of a Small claims procedure,make it play it’s functions.There are five chapters in this thesis:Ⅰ The basic theories of the small claims procedure.In this part,the article introduces the concept,procedure,role and relationship with the simple procedure of small claims procedure,on the basis of the concept,the concept of small claims procedure,the right to start the characteristics and the theoretical basis of analysisprovides a theoretical basis for small claims proceedings legislation.Ⅱ The current situation,problems and causes of the power to start small claims procedure in china.This chapter analyzes the relevant laws of our country’s start right of procedure,reach the conclusion of mandatory start of the procedure,and makes a detailed analysis of the insufficiency,the existing problems and the causes of the compulsory start of the small claims procedure,for example there is no clear relationship between the procedure and simple procedure;research on the small claims procedure is not deep enough;the trial and operation of small claims in our country is short and the experience is limited;the legislative system of small claims procedure is not perfect,and the people do not understand and trust the small claims procedure very well.Ⅲ Comparative analysis of the power to start small claims in typical foreign countries and regions.This chapter focuses on the the development background and the legislation practice of the small claims procedure in the typical foreign countries and regions,summed up the United States,Britain,Japan and the European Union by the parties choose to use the applicability of procedure;Germany and South Korea’s ruling by judge whether the applicable procedure;China Taiwan by law enforcement application procedure.Ⅳ Three different modes to initiate small claims procedure.This chapter introduces the analysis of domestic scholars on the mandatory application mode,the choice of using mode and mixed mode of the three procedure startup mode,based on the study of the domestic scholars on the views and put forward my own ideas,pointing out that we should adopt a mixed mode.Ⅴ Countermeasures and suggestions on optimizing the system of starting power of small claims procedure in china under the mixed mode.Put up some suggestions on the design、optimization of the system of the start up of small claims procedure under the mixed mode,for example,the summary procedure and the small claims procedure should be divided into independent procedures,giving the judge discretion,giving the parties procedure objection right and so on.