[author] Zuo Weimin

[content]

Efficiency VS Rights? An Empirical Examination of the Debate on the Reform of the Separation of Complicated and Simple Civil Procedures

*Written by Zuo Weimin

Professor, School of Law, Sichuan University

Member of the Academic Advisory Committee of the Institute of Chinese Law and Society, Shanghai Jiao Tong University

Abstract: The reform of the separation of complicated and simple civil procedure piloted in early 2020 has been officially confirmed by the amendment to the civil procedure legislation that was fully implemented at the beginning of 2022. However, in the legislative process, the debate between the "efficiency faction" and the "rights faction" on the reform idea has not ended. How to evaluate the reform and related academic controversies? The empirical research of the team led by the author shows that the views advocated by the "efficiency faction" and the "rights faction" have some truth, but they are not fully supported by the reform data. On the one hand, although the efficiency-oriented reform of separating complicated and simple streams has improved efficiency to a limited extent, it is difficult to call it significant on the whole, and the degree of efficiency improvement of various reforms is uneven, which seems to indicate that the reform effect is close to the ceiling. On the other hand, the reforms did not clearly undermine rights. Although the small claims procedure and single-judge reforms appear to have curtailed a number of procedural rights at the abstract level, the rights as a whole have not been significantly diminished. Some of these measures, including the reform of electronic litigation, are even conducive to the realization of rights. In short, this efficiency reform is not necessarily linked to the harm of rights, nor is it contrary to the protection of rights. In view of this, in the future, on the basis of sufficient empirical research, it is necessary to evaluate the success or failure of the reform and whether it has achieved the preset goals, test whether the reform is in line with the specific value orientation, and then design and pilot a down-to-earth, operable and achievable reform plan, so as to effectively promote the improvement and development of the civil procedure system.

In December 2021, the reform legislation on the separation of complicated and simple civil procedures was announced. But the debate over how to proceed with reform is not entirely over. On the whole, there are two reform ideas in the pilot and legislative process, one of which is efficiency-oriented and aims to promote the further simplification of China's civil procedure (hereinafter referred to as the "efficiency school"). This view of reform is mainly held by the judicial practice sector. Another reform approach is rights-oriented, with the intention of creating a legitimate procedure ——— a relatively formal civil procedure (hereinafter referred to as the "rights faction"). Academics, especially those in civil procedure law, generally hold the latter line of thought, and have a lot of criticism about the efficiency-oriented reform of separating complicated and simple cases and the relevant provisions of the new legislation. The provisions of the new Civil Procedure Law on the separation of complicated and simple civil procedures reflect a compromise between the two reform ideas: while continuing to adhere to the efficiency orientation as a whole, the legislator has adopted some of the views of the "rights faction" and rejected the individual claims of the "efficiency faction" that they are too "radical", that is, some provisions of the Civil Procedure Law of the People's Republic of China (Draft Amendment) (hereinafter referred to as the "Draft Amendment"). The divergence in reform thinking shows that people have not yet reached a consensus on whether the reform of separating complicated and simple civil procedures will improve the efficiency of litigation and whether it will reduce the litigation rights of the parties. But is this divergence as imagined? The author led an empirical research group on the reform of the separation of complicated and simple civil litigation to carry out an empirical investigation, on this basis, to review the impact of the reform on efficiency and rights, to verify the above disputes, and to further explore the future direction of civil procedure reform.

Has the reform of the separation of complicated and simple streams improved efficiency?

Whether and how to improve the efficiency of the reform of separating complicated and simple streams with efficiency as the main orientation is the starting point of this reform. The author believes that the "efficiency" discussed in the reform should be mainly considered from the perspective of time cost, and saving human resource costs is also one of its purposes. However, how effective are efficiency-oriented reforms in practice? In this regard, empirical studies have found that the reform has limited efficiency improvement in some aspects, but the overall efficiency improvement is not significant.

1.The efficiency of some reform areas has been improved to a certain extent

1.1 The improvement of electronic litigation rules has significantly improved the efficiency of litigation

It has become a consensus in the theoretical and practical circles that electronic litigation can help improve judicial efficiency. The empirical research shows that taking the Intermediate People's Court of X City and 22 basic courts (hereinafter referred to as the "two levels of courts in X City") as an example, the implementation of the reform of separating complicated and simple cases has brought a series of obvious changes to the practice of electronic litigation. Figure 1 shows that in 2020 and 2021, the number of online cases filed exceeded 100,000 and 200,000 respectively, and the online case filing rate increased by more than 10% year-on-year. Second, in the two-year pilot phase of reform, the number of online trial cases and the application rate of online court trials increased significantly, and the number of online trial cases exceeded 10,000 in 2021 (see Figure 2 for details). Thirdly, electronic service has achieved outstanding results. Figure 3 shows that both the number of effective electronic services and the success rate of electronic services continue to grow. Although the research team did not obtain specific data on the reduction of judicial resources and the reduction of litigation time in the courts at the two levels in X city, it can be inferred from the "Analysis Report on the Effectiveness of Building Smart Courts to Promote Green Development" released by the Supreme People's Court in 2020 that the above changes undoubtedly mean that the litigation duration is further shortened and judicial resources are further reduced.