On The Legislation Of Non-Contentious Procedure In China

In foreign countries, one hundred years ago, the first non-contentious procedure code has been developed.In contemporary China, the non-contentious procedure is not a legal concept, not to mention the sound and practical legal system. Foreign and regional non-contentious procedures handle a large number of non-contentious matters, but, in our judicial practice, the vast majority of those are to deal with through litigation and administrative proceedings. There are even some non-contentious matters are no clear process and in a "fend for themselves" state.In the "confirm mediation agreement","achieve security interest" and other influence of new non-contentious matters legislation,under the special procedures for the reform of civil litigation and non-contentious procedure legislation zeal in theoretical circles, the research of non-contentious procedure begin to heat up. However, only a start, non-contentious procedure theory in China is still in the early stage.Paper adopts comparative and historical investigation and case analysis, empirical research method, revolving around the following three questions:Firstly, what is the non-contentious procedure? After studying the basic principle of the non-contentious procedure, the paper draws a conclusion:the concept of "non-advocacy" can not be directly equivalent to "no dispute"; the basic principles of non-contentious procedure has been complicated; and its basic function has also been magnified. In addition, the paper also comparativly study the legislative history and current status in main countries and areas of civil law system, and find the similarities and differences in order to provide a useful reference for our legislation.Secondly, why should we formulate non-contentious procedure code? By studying China’s legislative defects, causes and disadvantages, this paper demonstrates the necessity of legislation of non-contentious procedure.Thirdly, how to construct the non-contentious procedure legal system? The paper draws the conclusion that our country should made independent code, and should adopt the total specific structure. The paper also proposes how to promote the independent legislation, and construct the main content of the general and sub construction. The main contents of each chapter are summarized in the following:The first chapter is "the basic principle of non-contentious procedure". This chapter analyzes several important concepts such as "non-contentious"," non-contentious matters"and "non-contentious procedure", and studies the basic principle and function of this procedure. The traditional " non-contentious "concept has been difficult to explain the non-contentious matter and procedure, so" non-contentious" is not without controversy. The essence of the non-contentious matter and the procedure is difficult to define, but its external features are better be descripted. The basic principle of non-contentious procedure includes powers principles, written trial principle and non-open trial principle. However, with the development of non-contentious procedure theory and practice, these principles are subject to a certain degree of impact. The main function of non-contentious procedure include the supervising and protecting of public and private interests, to preventing and disputing settlement.The second chapter is "the comparison of different countries and regions of non-contentious procedure". The comparison of non-contentious procedure legislation in German, France, Japan and Chinese Taiwan and Macao area indicates:either stand-alone or provisions of the code of civil procedure legislation in the legislative style; different legislative system adopted the different structure, the general set up the general rules; most of the specific provisions are established according event type, but there are also on the basis of program; Most of the applicable scope is open; the standard of judging the non-contentious matter exists distinction:regulated directly or judged in accordance with the abstract identification.The third chapter is "a review on China’s non-contentious procedure". China has no tradition of non-contentious procedure, and the chapter of the special procedure in the civil procedure law provides some provisions of non-contentious procedure. In addition, the relevant substantive law and judicial interpretation also stipulates some non-contentious case. Insufficient legislation of non-contentious procedure is mainly manifested in:the type of non-contentious procedure is relatively thin; non-contentious matters is less; the function of non-contentious procedure is single; non-contentious procedure is independence; it is divided between substantive and procedural law; some concrete system is lack, etc. The main reason is: the influence of the former Soviet Union;the civil and commercial law is not developed well; the concept that court is litigation court; the administrative power has the strong position in tradition,etc. Thus, in practice, those has produced many drawbacks. So legislation of our country should adopt independent legislative style. However, there are some factors influencing the independent legislation, so it need to be pushed forward together from all aspects. On the structure of the code,we should adopt a more mature, inclusive structure and make it be in line with China’s national conditions.The fourth chapter is "the construction of the general part of non-contentious procedure in China". Establishing the main contents of the general provisions should be on the base of non-contentious procedure theory, according to the particularity of non-contentious procedure. This paper presents preliminary recommendations in the jurisdiction system, subject system, the evidence system, end procedure and relief system and other aspects.The fifth chapter is "the construction of the specific provisions of non-contentious procedure in China". The main content in the specific provisions of the code of non-contentious procedure is the special procedure rule applied to different concrete non-contentious matters, so establishing the species of concrete non-contentious matters is the basic premise and important content in the construction of the specific provisions. Our current legislation should not handle those non-litigious matters that have controversial rights and obligations through non-contentious procedure. Under this condition, this paper investigates the foreign country’s and regional traditional typical non-litigious matters are handled in China and its advantages and disadvantages. Then, the paper points out that, China’s non-contentious procedure legislation should first establish the basic scope including: three species include the civil, family and commercial non-litigious matters, a total of twenty non-contentious matters.