Study On The Application Of Procedural Jurisprudence In Family Justice

Due to the development of modern society,family conflicts increase,and there are many complicated family disputes.Many countries and regions in the world have carried out reform and legislation in the field of family justice,and solved family disputes through special family justice procedures,which has become a trend of the development of modern civil litigation.China is gradually aware of the necessity of the establishment of family judicial procedures.Since 2016,China has carried out the pilot work of the reform of family trial mode and working mechanism.In the pilot work,courts all over the country have carried out practical exploration of family judicial procedure.Academic circles also have a heated and in-depth discussion on the construction and operation of the family judicial procedure.At present,under the background of the attention of the practical and theoretical circles to the family judicial procedure,there is still a phenomenon of neglecting the basic theoretical research in the family judicial procedure,especially the relevant research of procedural jurisprudence.As a result,the scope and type of family cases in the current research and practice of family judicial procedure in China are relatively vague,and the specific application of procedural jurisprudence in family cases is unclear,which hinders the future construction and development of family judicial procedure in China.The application of procedural jurisprudence is an indispensable part of procedure construction.Procedural jurisprudence contains the principles of civil procedural law,which is the guiding principle and criterion of legal activities reflecting certain content of procedural law.It has the function of ensuring the reasonable setting and operation of procedures and is the product of the combination of theory and practice.The basic types of procedural jurisprudence include procedural jurisprudence and non procedural jurisprudence.The judicial procedure of family affairs has its particularity in the following four aspects:(1)the case handled has its particularity;(2)the purpose,function and value of establishment pursue its particularity;(3)the basic principles and specific rules have its particularity;(4)the procedural guarantee has its particularity.The above-mentioned particularity makes the family judicial procedure different from the ordinary civil procedure,and the application of procedural jurisprudence also presents a special state.Therefore,the dualistic application of procedural jurisprudence in the civil property litigation can't meet the needs of the settlement of family disputes,the specialization of the application of procedural jurisprudence in family cases,the procedural guarantee in the process of handling non litigation events,and the development of family judicial procedure due to its absolute standard,so there is not enough applicable space in the order.The application of procedural jurisprudence in family judicial procedure in Germany,Japan and Taiwan of China has provided valuable extraterritorial experience.Based on the investigation of the development of relevant legislation,legislative style and application of procedural jurisprudence in domestic judicial procedures in Germany,Japan and Taiwan,it is concluded that the application of procedural jurisprudence in extraterritorial countries(regions) is based on the premise of determining the scope of domestic events,using the method of family case classification and integrated treatment of family cases,and applying the theory of staggered application of procedural jurisprudence in domestic judicial procedures The special application of the present procedural jurisprudence.It is worth noting that the theory of application of procedural jurisprudence in extraterritorial countries(regions) does not completely solve the situation of application of procedural jurisprudence conversion and comprehensive application when dealing with several family affairs in the same procedure,and there are certain limitations in the application of the judicial procedure of family affairs.At present,there is no special legislation of family judicial procedure in our country.In the process of reform of family trial mode and working mechanism,each pilot court has made a series of efforts to determine and type the scope of family cases,to limit the principle of disposition and power in family judicial procedure,to limit the principle of debate and power exploration,to apply the principle of procedural guarantee,etc.However,there are still some problems,such as the lack of application of procedural jurisprudence on the basis of case classification,the ambiguity of relevant provisions,the unclear application scale,the inadequate application of procedural security principles,and the lack of necessary procedural jurisprudence exploration.In the future,the application of family judicial procedural jurisprudence in our country will take the path of determining the scope of family cases-the integration of family cases and family cases-the multiple application of procedural jurisprudence under the type of cases,and consider the needs of the application of procedural jurisprudence in the integration of family cases.The types of family cases in China can be roughly divided into three types: family status disputes,family property disputes related to identity relations and family non litigation disputes.The theory of multiple application of family judicial procedural jurisprudence in China includes:(1)the theory of staggered application of family judicial procedural jurisprudence,which solves the need of application of procedural jurisprudence in a single family case;(2)the theory of application of conversion of family judicial procedural jurisprudence,which deals with the application of procedural jurisprudence in the conversion of two family cases in the same procedure;(3)the theory of application of comprehensive application of family judicial procedural jurisprudence,this application theory is applicable to the situation when multiple family cases are handled together in the same procedure.According to the different characteristics of different family cases,the theory of multiple application of family judicial procedural jurisprudence in our country matches the appropriate procedural jurisprudence.It not only considers the needs of the application of procedural jurisprudence in a single family case,but also considers the application of procedural jurisprudence conversion in the family judicial procedure and the comprehensive application of procedural jurisprudence in multiple different types of cases in the same family judicial procedure.In the case of identity relationship,due to the substantive disputes between the two parties,the principle of disposition right should be applied or the principle of disposition right should be applied in a limited way.Because this kind of controversy is related to the identity relationship,it needs to take certain restrictions when the three sub propositions of the principle of debate are applicable.The principle of procedural law is mainly applied in the case of identity relationship,and non litigation is also applied.In the process of case integration processing,there will also be situations in which procedural jurisprudence are applied and comprehensively applied.Identity-related property disputes are essentially property-based disputes,but based on their implication to the identity relationship,certain restrictions need to be imposed on the type of case when applying the principle of disposition,debate or authority.Due to the implicated relationship with the identity relationship,this type of dispute is often dealt with in an integrated manner in the process of identity relationship dispute procedure,and it is necessary to consider the conversion and comprehensive application of procedural jurisprudence principles.Non-litigation cases mainly apply non-litigation procedural jurisprudence,and there are situations in which procedural jurisprudence is transferred and applied between cases.In the application of procedural jurisprudence in some types of cases,it is necessary to pay sufficient attention to procedural safeguards to prevent the parties or interested parties from actually participating in the process from causing damage to the substantive and procedural interests.Through procedural safeguards,the parties are fully involved in the process.In the application of procedural jurisprudence in family non-litigation cases,it is also necessary to pay attention to the principle of maximizing the rights of minors,to protect the legitimate rights and interests of special subjects,and to truly achieve the purpose of family judicial procedure.