小额诉讼程序移植困境之省思

Reflections on Predicament in Transferring Small Claim Procedures

小额诉讼程序在实践中的利用率很低,这与立法者当初引入该程序时的预期形成鲜明对比。为此,有必要对此次立法活动进行反思。立法者在进行此项法律移植时,没有考虑到基层法院的法官对该程序可能有的顾虑及反应。更为关键的是,片面追求快速结案、减轻法院负担的立法目的是有失公允的,也倒置了公正与效率之间应有的关系。再者,缺少充分的比较法上的准备,也严重影响了立法的质量。西方国家设置小额诉讼程序的原因是其普通程序过于正式、复杂、迟缓,而我国既有诉讼程序的区分度并不高,我国的普通程序(更不用说简易程序)总体上并没有西方普通程序那样的问题。

Small claim procedures represent very low application rate in practice, which is in sharp contrast to the anticipation of legislators when introducing this type of procedure. As a result, it is necessary to reflect on this particular legislative activity. When legislators were making this legislative transfer, they did not take into consideration the possible concerns of and reactions to this procedure by judges from grassroots courts of law. More importantly, the legislative purpose for partially-justifiable pursuit of quick closing and reduction of burdens on court is rather unfair, which inverts the proper relationship between justice and efficiency. Furthermore, the lack of adequate preparation of comparative laws also seriously affects the quality of legislation. The reason why western countries set up small claim procedures is their general procedure is too formal, complex, and time-consuming. However, in China, the existing procedures show little distinction, so the general procedure in China （not to mention simplified procedure） does not cause similar problems as can be found in western general procedures.