Study On Application Of The Sole-Judge System Of Civil Second Instance

The reform of separating complicated and simple civil proceedings piloted in early 2020 has been officially confirmed by the amendments to civil litigation legislation fully implemented in 2022.The newly amended Civil Procedure Law establishes the sole-judge procedure in the second instance.However,disputes over the sole-judge procedure in the second instance are still ongoing so far.There are three major controversies:(1)the necessity of extending the sole-judge procedure to the second instance;(2)whether the sole-judge procedure impairs the rights of the parties;and(3)the exploration to further relax the conditions for the sole-judge procedure in the second instance.The expansion of the sole-judge system to the second instance conforms to the law of development of civil judicial organizations.By analyzing the basic logic of the expansion of the sole-judge system in the second instance from the aspects of economy,history and value,we can understand the sole-judge system correctly and ensure the legitimacy of the sole-judge system.From the economic aspect,the sole-judge system is an inevitable phenomenon when the economic development reaches a certain height.Many countries have the trend of the expansion of the sole-judge system,which considers the difficulty and importance of the case in order to allocate judicial resources accurately.Behind the expansion of the sole-judge system is the necessity of the historical development of judicial organizations and the evolution of the modernization of the function of the collegiate system.The function of the collegiate system in modern judicial system is to deal with complicated cases where there are competing applications of law.The value of the sole-judge system in the second instance lies in the scientific allocation of judicial resources,so as to achieve the goal of efficient control of litigation energy consumption,which is the inherent demand of reform.The value mechanism of collegial system is "dialogue-consensus",and it is a complicated process from dialogue to running-in.Therefore,both of them have their own advantages and suitable occasions,so the application of sole-judge system in the cases without different legal opinions is justified.The sole-judge system reform in the second instance does not obviously impair the rights of the parties.What the sole-judge system reduces are non-fundamental procedural rights,and on the whole,the rights have not been obviously impaired.First of all,considering the number of objection conversion cases in the practice of the sole-judge system in the second instance and the retrial revision rate of such cases,it shows that the quality of judgments rendered by the sole-judge system has not declined since the reform.Second,the collegial system is not an inherent requirement of procedural guarantee,and the sole-judge system does not mean the weakening of procedural guarantee.Judicial organization and judicial procedure are two levels of issues.Judicial organization has an independent status which is reflected as the input of judicial resources by the State.The core of procedural guarantee is of course reflected in the setup of judicial procedure,as it is not necessary and inappropriate to be bundled together.In this respect,the sole-judge system in the second instance is set up according to the general procedure,which fully considers the requirement of procedural justice.In a word,the sole-judge system reform in the second instance does not run counter to the rights guarantee.The reform of the sole-judge system in the second instance is incomplete,with problems in the aspects of application scope,application elements,and procedure transfer.At the same time,we should combine various aspects such as judicial organization,legal procedure,and trial level system,etc.Improvement.First,expand the application scope of the sole-judge system in the second instance.Based on the complexity of the cases of first instance and the form of trial organization,we should break the limitation that the trial of the cases of the second instance by a sole-judge shall be limited to the cases of first instance summary procedures.The application of the sole-judge system in the second and second instances should be subject to limited autonomy of will.The application of the sole-judge system in the second instance should not be completely subject to the autonomy of will of the parties.According to the public law attribute of procedural law and the limited feature of procedure option,the selective application of the sole-judge system in the second instance should be transformed into mandatory application.Only the cases labeled as complicated by the court can be classified into simple cases through autonomy of will of the parties.Third,improve the conversion of the sole-judge system in the second instance.In order to correct the mistakes caused by the inaccurate separation of cases for the first time,we should establish a two-way conversion mechanism between the sole-judge system and collegiate system in the second instance,and clarify the initiator and procedural standards for such conversion.Fourth,improve the supporting mechanism for the separation of complicated and simple cases by the sole-judge in the second instance.We should promote the normalization of the sole-judge trial of civil and commercial cases in the second instance,and establish scientific and reasonable pre-procedure for the separation of complicated and simple cases to guarantee the accurate matching of cases by the sole-judge system in the second instance.We should clarify and unify the specific elements of identification,insist on the combination of automatic identification and manual identification,and the combination of objective criteria and subjective criteria.