On The Theory Of The Staggered Applying Of The Lawsuit Legal And The Non-lawsuit Legal In Small Litigation Procedure

The two basic classification of the civil trial procedure is the judicial proceedings and the non-lawsuit procedure.And at the same time,the dual separation applying of procedural jurisprudence and the non-lawsuit legal theory is the dominant theory in civil program setting which support that lawsuits according to the lawsuit legal and non-legal parts according to the non-lawsuit legal theory,the two have no intersection.The legal principle of lawsuit concludes dispose of the principle,principle of debate,principle of public,principle of direct verbal,etc,while the non-lawsuit legal theory is the restricts or excludes of the above principle.The small litigation procedure essentially belongs to the proceedings,it’s applicable objects is lawsuits,therefore,according to the dual separation theory,the small litigation procedure should be strictly applicable procedural jurisprudence.However,the objects of small litigation procedure is always suits between the ordinary people,involving smaller interests,which decides that it will pay more attention to the pursuit of efficiency value more focused on the needs of the general public of "ability and willingness to "close to the judicial while pursuing fair.Therefore,the litigation applying of jurisprudence and the non-lawsuit legal in small litigation procedure is necessary.However,at present,the discussion about legal issues of small litigation procedure,especially the application of non-lawsuit legal theory in small litigation procedure is rarely.The building of any kind of application system always needs the support of corresponding theory knowledge,only so,it can run more smoothly and durable.Of course,small lawsuit system is no exception,it has very important guiding significance for the effective operation of the program and perfect to clarify the legal theory of small litigation procedure.In addition to the preface and epilogue,this article is divided into the following six parts in all:Part Ⅰ:This section discusses the basic concept and characteristics of small litigation procedure,points out that it is the mining of narrow understanding of the small lawsuit procedure in this article,namely the courts at the grass-roots level of small amount of small court on the trial court or specialized smaller,compared with ordinary cases which is further simplification of the summary procedure of a program.Next respectively from two aspects of the advantages of a small procedure-to achieve the efficiency of lawsuit,and the hidden trouble existing in the application-can fully find true or not,briefly discusses the advantages and disadvantages of the implementation of the program.Part Ⅱ:This section makes a theory discussion for the legal principle of lawsuit and the non-lawsuit legal theory emphatically from dispose of the principle,principle of debate,principle of public,principle of direct verbal on the basis of a comparative analysis of lawsuits and non-legal.Part Ⅲ:This section respectively discusses application of the two current theory of civil program setting,namely "the dual separation applying of procedural jurisprudence and the non-lawsuit legal theory","the litigation applying of jurisprudence and the non-lawsuit legal theory.The former support that lawsuits handled according to the lawsuit legal and non-legal parts according to the non-lawsuit legal theory,the two have no intersection;While the latter claims litigation legal theory and the non-lawsuit legal theory can be used in the same event(lawsuits or non-legal)and the same program at the same time.It has more advantages than the former as it is developed on the basis of the former.However,the former is not a good-for-nothing theory,it can dominate the theory of program setting for a long time,suggest that it has some reasonable factors.Therefore,we should not deny it totally.Part Ⅳ:This section firstly demonstrates necessity of Staggered applicable of jurisprudence and the non-lawsuit legal from three aspects of the legal nature of requirements,can be fully applicable procedural jurisprudence or the non-lawsuit legal theory in small litigation procedure or not,and concluded that the limits of applying the non-lawsuit legal theory is able to "resolve disputes’ in a hurry ’and to guarantee the rights of the parties’ in no hurry’".Then,it demonstrates the feasibility of the litigation applying of jurisprudence and the non-lawsuit legal from the requirements of procedure guarantee in practice and the depth research for non-legal type.Part Ⅴ:This section introduces the the litigation applying of jurisprudence and the non-lawsuit legal in small claims procedure emphatically from debate doctrine and authority detection,direct trial and indirect trial,verbal trial and written trial,public trial and inpublic trial,free proof and strict proof of staggered,procedural jurisprudence and the non-lawsuit legal theory.Part Ⅵ:This section discusses the further perfect of the litigation applying of jurisprudence and the non-lawsuit legal in small claims procedure in the future,that mainly from three aspects of giving the procedure options to the parties or not at the very start,guarantee several main rights enjoyed by the parties,and relief way for the possibility of error referee.