Research On Family Procedure Law

Family procedure refers to the procedure in which a party sues and asks the court to resolve a family dispute through judicial decision.It includes family contentious proceedings as well as family non-contentious proceedings.Theoretical research and legislation on family procedures have long been established outside the country.Many countries and regions have established the jurisprudence of family procedures,legislation has been completed,and specialized trial organizations such as family courts have also effectively operated.Family disputes are a type of civil private rights disputes,but they are special in the field of private rights.Between family procedure law and civil procedure law is the operating logic of special law and general law.The disputes arising from the family-based unit and its judicial settlement procedures are special in civil procedure law,so they are valuable and meaningful to be studied separately.From the perspective of national governance,in the social turmoil and changes of more than 100 years,identity relationship and family are the fronts where national governance confronts.The rules for the adjustment of status relationships directly determine the relationship between individuals,families,and countries,and guide the direction of social development and governance models.In the context of the modernization of governance in our country,exploring the basic value of family procedure law and constructing the theory and system of family procedure in the way of national logic is the core of promoting the systematization of the family dispute resolution mechanism.Taking the logic of the state as the core to shape the common values of society,it guides the majority of people's good law and good governance,and the fragmentation of social dissolution determines the fragmentation of governance values and effects;dispute resolution has levels,while traditional settlement of family disputes The clan family law no longer exists is an unavoidable practical problem facing China today.In the context of a country ruled by law,a government ruled by law,and a society ruled by law,justice is the final barrier to family order and justice,and its leading and radiating role is self-evident;The core governance logic of the country means the legalization of social settlement of disputes,and legal principles have penetrated the governance of grassroots society in social settlement of disputes.While national law tolerates the existence of civil family order in the blank area,it subtly transforms the civil family order to make it comply with the norms and requirements of national law.The resolution of family disputes is future-oriented and public welfare.Proper settlement of family disputes requires the coordination of government and social resources.This can only be done by the efficiency and authority of state organizations.Therefore,it is necessary to construct Family Procedure Act at the national level,and select and determine the basic principles and systems to be followed by national justice.The family is different from every individual in the family.The family and everyone in the family have independent value and significance as legal objects.After getting rid of the clan identity of traditional society in the "family revolution" in modern times,China has made great strides towards civil law legislation centering on individual rights and freedom of contract.Discourse systems such as natural persons and legal persons cover the direct experience object of the civil and private sphere: the family.Pure personal freedom(will)will lead to the loss of ethics.The ethics and socialization of natural persons through their families will fail,creating a large number of economic crisis and moral disasters.Modern jurisprudence holds that each individual in the family is both a rational personality and an ethical identity.Personality person brings elements of equality to family identity,but it cannot deny ethical identity itself.Therefore,family identity is always a special field in the field of civil society,and it is another state of existence in which private persons differ from social life.Therefore,the civil procedure mechanism based only on personality is unable to respond to the need to resolve disputes arising from ethical identity disputes.Family law is based on family self-government,which only sets the bottom line,leaving a lot of room for families to deal with it freely.This is one of the reasons for family conflicts.?The dimension that the family should consider when setting up the rules of family procedure law means that in the flexible autonomy space where the substantive law is left blank,not all disputes between families,the state has an obligation to start judicial trials to resolve.It is therefore necessary to confirm the scope of the suitability of family disputes.When an actionable dispute is requested for judicial settlement,the judiciary cannot refuse a decision because there is no substantive law.The family procedure law can no longer use the assumption of "rational personality person" to apply litigation such as no trial without complaint,dispositional doctrine,guarantee of rights such as burden of proof,liberty of contract,and self-responsibility.This provides a reasonable flexibility for the judicial organs to initiate procedures on the basis of their powers,conduct investigations based on their powers,and make up for procedural capacity of vulnerable groups.Different from traditional clan family law,contemporary society pays attention to the family as the most fundamental social unit and legal relationship.It has the functions of buffering,regulating,and autonomy in the national judicial process of family disputes,and re-values the value of its family relationship.Evaluation and weighing are explorations and deductions based on the theory of modern equal personality rights.The family procedure law is not new to China.As early as the end of the Qing Dynasty and the beginning of the Republic of China a century ago,it had already had relatively complete legislation and judicial practice.History is not simply a statement of past facts,but a treasure trove of logic and success for people.Exploring the interactive relationship between the changes in family procedure law and social changes in history has a particularly important role in studying the principles and rules of family procedures in China today.Because family disputes are highly dependent on the historical traditions of a country,especially marriage,family,and kinship are greatly affected by social culture and religion,and it is of limited significance to learn only through horizontal comparison between China and foreign countries.The sixth part of the Civil Procedure Regulations promulgated in 1921 is a special litigation procedure,which provides for personnel litigation procedures,which are divided into marriage incidents,inherit incidents,parent-child incidents,interdiction and quasi-interdicted,and declaration of death stories.It is the first family procedure law promulgated and implemented in the history of our country.Among them,the legal principles and system characteristics of identity relationship litigation which are different from general property relationship litigation,have systematically regulated and distinguished litigation events and non-litigation procedures;Emphasizing public welfare,highlighting the prosecutors' supervision in court and their duties as parties to their duties;Established a higher level of jurisdiction and exclusive territorial jurisdiction;Seeks substance and truth,and intervenes to investigate and obtain evidence;Adopts integrated processing to resolve related disputes in a timely manner and prevents conflicting judgments.Although judicial practice has a game between the new system and the old customs,through the jurisprudence and interpretation of the Dali Court at the beginning of the Republic of China,the new system was gradually implemented,and the custom was reformed,laying the foundation for the new order.It can be seen that in the first legislation of the family procedure,the ethical nature and commonweal characteristics of the family procedure have been profoundly understood and grasped.From the perspective of law,effective responses have been made to ideological changes and changes in social structure.After the "six laws were totally abolished"(six legal documents compiled during the Republic of China),the theory of China's modern civil litigation mainly came from the Soviet civil litigation jurisprudence in the early days of the founding of the PRC.The "People's Republic of China Civil Procedure Law(Trial)" and subsequent amendments were promulgated in 1982.Its basic trend is to weaken the the super authority system and strengthen the party-oriented system.These are legislative options that use property disputes as the basic model.There are no separate rules for family procedures.The use of property-based litigation principles and rules to resolve identity relationship litigation has resulted in many ills such as contractualization of identity relationship and confrontation of litigation under "individualism",which has become a content of family trial that needs urgent reform.The essential attributes of family disputes include ethics,natural essence,public welfare and emotion.Marriage and family are ethical entities,and the marriage relationship cannot be subordinated to the willfulness of the couple.Unlike the egoistic nature of rights,ethics emphasizes altruism.If it were not for the ethical nature of the family,family life would become a "field of rights" and the lives of the weak would be unsustainable.With the change of society,the family ethics has changed.While gradually eliminating the limitations of traditional family ethics,it has continued to add modern legal spirits such as personality equality and protection of the weak to form a new family ethics.Because of the existence of kinship facts,the marriage relationship may have the "social integration of purpose" factor,but the kinship relationship is a "natural combination of nature",which means the denial of pure autonomy.Although family disputes are civil and private disputes,the family is the basic unit of society,and healthy family order is the foundation of social stability and development.Due to the protection of the interests of vulnerable groups such as minor children,the elderly,and the need to make arrangements for the future while resolving past disputes,family procedures are often of strong public interest.In family disputes,emotions are intricate and complex,and relying solely on the distribution of rights and obligations cannot achieve the true needs of the parties.From the perspective of legislators and adjudicators,the particularity of the family procedure is reflected in the following: First,the litigation requests in the family procedure are complicated,and there are both disputes over property relations and disputes over status in a case.It involves both private interests and public welfare.There are both matters of disposition and investigation of powers.There are both past-oriented dispute resolution and future-oriented rational arrangements.Secondly,the matters involved in family cases are hidden,and outsiders are generally unable to know;the close relationship between the parties makes them less conscious of retaining evidence;because of social ethical evaluation,there are reasons such as unwillingness to expose the so-called "house ugly" and make it difficult to identify the facts.Thirdly,the result of the judgment is needed to achieve multi-dimensional justice.It is necessary to settle disputes and maintain order,and also to consider reasonable arrangements in the future.It must also comply with family ethics and justice,protect the interests of vulnerable groups,and reflect the rank of rights and interests that the country intends to protect.This all poses a great challenge to the setting of family procedures.Although family cases and family procedures have many of the above characteristics that are different from the protection of modern civil law rights and liberty of contract,their essence is still a dispute over private rights.The premise of discussing the special procedural rules of family procedure is still based on the context of the legal principles,functions,and principles of civil procedure.Between family procedure law and civil procedure law is the operating logic of special law and general law.For disputes classified in family matters,if the family procedure law has special provisions,the provisions of the family procedure law shall apply;if the family procedure law does not specifically provide,the provisions of the civil procedure law shall still apply.When judging family cases according to general civil procedure,there is no normative significance in the application of law to distinguish between general civil cases and family cases.However,if the family procedure law is distinguished from the civil procedure law and the special rules are set,the first problem to be solved is to define what kind of civil cases are family cases and the special family procedures should be applied.First,regarding the scope of family members in "family affairs",the provisions of our country's cvil law,criminal law,administrative law,and procedural law are different.At this time,the definition according to the civil entity law is the most standardized.In principle,family cases are determined in accordance with the minimum scope of "family members",but it is also appropriately expanded in disputes involving kinship relationships such as inheritance.Secondly,some family member relationships that are not determined in the substantive law,such as cohabitation and marriage,are also included in the scope of family cases because they also have human relations and emotions;divorce,termination of adoption relationships,and other situations that end family member relationships are also included in family matters Cases;only exceptions allow parties to agree to choose ordinary civil proceedings when disposing of property disputes after dissolution of their status relationship.Finally,not all cases of property disputes related to identity relationships are treated as family matters,such as disputes over the return of loans between brothers.The standard for family cases is that the right to claim property must occur based on a certain kinship relationship.If it can also occur between persons without status relationship,it is not a family case.Various types of family cases occur frequently in life,and their nature and demands are different.The applicable procedural principles are also different,and they need to be classified for analysis and application.First of all,the dualism of contentious jurisprudence and non-contentious jurisprudence presented in modern civil proceedings is also applicable to family proceedings.Among them,the use of non-contentious procedures first appeared in the custody of minor children in family procedures,and it was reflected in judges' power intervention,power discretion,quick ruling and other aspects.Some civil law countries have declassified family cases,such as Germany;others have declassified traditional contentious cases,such as Taiwan.In our country,non-litigation procedure is only a scientific concept.The theory of non-contentious procedure in family affairs does not meet the needs of multiple trial procedures in family cases.Based on public welfare considerations such as the protection of vulnerable groups such as minors,non-disposable rights,future arrangements,and judges' discretion,it is still necessary to expand the types of family non-contentious cases.In addition to cases of declaration of death,determination of capacity for civil conduct or limited civil capacity of conduct,and guardianship,it should also include the types of cases such as the payment of basic living security fees such as maintenance ? alimony? and alimony,nullity of marriage,visitation cases.Secondly,in the family litigation procedure,it can be further divided into family status litigation procedure and family property litigation procedure.Family status litigation procedure is the traditional personnel litigation procedure in the civil law system.It refers to special procedures for handling disputes over identity relationships such as marriage,parenthood,and adoption.Although the family property lawsuits deal with property disputes,the reasons for such property disputes are status relations,including the division and inheritance of divorced property.The basic logic of the trial is still to apply the basic principles of property relationship lawsuits.In principle,the principles of party disposition and debating doctrine should be implemented,but it should be handled in the family affairs procedure with the related identity system.In order to prevent contradictory judgments and save judicial resources,judicial intervention is carried out to achieve a balanced effect when involving public welfare and vulnerable parties.Through the design of family procedure law,the expected legal effect is the purpose of family procedure.As a special kind of civil procedure,the purpose of civil dispute resolution,protection of rights,and maintenance of order is of course the basic purpose of family procedures.In addition,the family procedure has its special purpose.Specifically,family procedures need to resolve disputes quickly and appropriately.The factors of time and appropriateness are particularly prominent in family disputes.This is one of the reasons why many countries have declared maintenance and alimony disputes as non-litigation.Secondly,the family procedure emphasizes protecting the interests of identity and personality in addition to protecting the interests of property.Third,compared with the protection of rights,the purpose of the family procedure is more focused on maintaining order,including restoring the damaged order and establishing a new future order.Finally,the purpose of the family process is to protect the best interests of minor children and the legitimate rights and interests of other vulnerable families.The relationship of rights and obligations between parents and children can't be summarized only based on natural affection,the blood nature of parents and children,and so on.With the change of the concept of patriarchal rights to parental rights and parental responsibilities,it has become a consensus that state parental rights interfere with the violation of the interests of minor children by parents.For other vulnerable groups,their legal rights should also be guaranteed through judicial trials.The basic research of family procedure law is to find the procedural jurisprudence that is consistent with the characteristics of family cases,the law of family affairs and the law that can achieve the purpose of family procedures.The foregoing definition of the dual jurisprudence of family contentious and non-contentious proceedings,as well as the necessary separation of family status litigation and family property litigation,provides a basic thinking framework for exploring the legal principles of family litigation.But contentious and non-contentious,status and property are not essential dual worlds in procedural jurisprudence or life events.There are also divorce cases,some of which only involve status litigation requests;some involve status and property litigation requests;and others involve status,property litigation requests,and non-litigation requests for child custody.Therefore,in family trials,how to apply the aforementioned basic classification of family procedures to specific cases requires the application of identity litigation jurisprudence,property litigation jurisprudence,and non-litigation jurisprudence on a case by case basis.The logic of searching for the legal principle of family procedure is based on the legal principle of civil procedure,and analyzes the internal legal principle of family procedure amendment and application.The two basic legal principles of modern civil litigation are the principle of the parties' right to dispose and the doctrine of debate.Although both of them are derived from the theory of "autonomy of private rights" in the private field,they play different roles in the procedure.In the principle of the right of disposition,the start of the procedure,the object of the court's adjudication,and the termination of the procedure are determined by the parties,and the court is bound by the parties' decision-making power.Debate doctrine refers to the disposition power enjoyed by the parties at the level of presenting facts and evidence,which involves sharing the responsibility of litigation materials between the parties and the court.The principle of the right of disposition usually has three levels of significance,the first level refers to the beginning of the request,that is,the establishment of the right of action,and the start of the national judicial process complies with the party's disposition.The second level is that the scope of the object of trial,that is,the object of action,is determined by the parties,and the court's scope of trial is bound by the object of action determined by the parties.The third level is the end of the procedure,such as withdrawal,admission or reconciliation,the parties have the right to dispose.Due to the ethical and public welfare nature of family procedure,and in order to solve disputes,stabilize order,and achieve the best interests of minors,this paper will demonstrate the correction of the three levels of punishment principle from the systematic procedural jurisprudence of family litigation right,systematic procedural jurisprudence of family litigation res judicata.The reason why the state initiates judicial procedures and is obliged to adjudicate family disputes between parties is that the right of family litigation is the logical origin of the family procedure.It is not an abstract right,and it must have substantive content,otherwise the judicial duties of the state will have no boundaries.The criteria for identifying the establishment of the right to sue in a civil lawsuit are based on the classification of the prestation,confirmation,and formation of the lawsuit,using the benefit theory of the lawsuit to identify,which is also applicable in the domestic proceedings.The dissertation selects public interest and strong ethical parent-child relationship lawsuits in status litigation as an example.An analysis was made of the denial of marriage and parent-child relationship and the confirmation of parent-child relationship.It can be seen that due to the public welfare and ethics of the family procedure,many potential plaintiffs have no right to sue and do not enjoy full freedom of disposition.In addition,procuratorial organs and Administrative authorities have been expanded to become plaintiffs.However,in general,the principles of autonomy of private law and no trial without complaint are still implemented even in family affairs procedures,in order to avoid judicial interference in the private life of the family.When the procuratorial organs and others initiated the procedure,they were different from the judicial organs with judicial duties and did not undermine the basic balance of the parties' disposition principles and the neutral adjudication of the judicial organs.The object of litigation in the family procedure is not only the object of the parties' disputes,but also the object of trial by the people's court,including the object of family litigation and the non-contentious object.In China's current trial practice,it is said that the entity's right of claim is the subject of litigation.It can guarantee the realization of the rights of the parties to the greatest extent and is realistic and reasonable.In view of the value pursuit of the unified handling and avoidance of conflicting judgments in the family procedure,taking "entity request" and "disputation events" as the minimum and maximum ends of the scope of the procedure object.Here,the "disposition" of the parties and the "instructions" of the court cooperate to determine the specific procedural object.In terms of classification,the parties in the family litigation procedure have the right to choose a specific procedural object based on the “Entity Request Right” or a specific litigation object based on the “facts of the dispute”.By giving the plaintiff the opportunity and power to indicate and select the scope of the trial object in this case,it can exclude procedural uninterests from the scope of the trial,so that the parties have a better chance to pursue the balance of substantive and procedural interests.According to the procedural object determined by the parties 'right of disposition,if litigation waste occurs,or even the power is lost due to the objective scope of the res judicata,the court shall exercise the right of interpretation to explain the parties' changes and additional procedural objects.Because the parties have enjoyed sufficient procedural guarantees,they have provided a justified basis for future loss of power due to the res judicata of the adjudication document,so there will be no question of infringing procedural interests.In non-litigation proceedings,the subject matter of the procedure is determined by the court,and the applicant's request can be regarded as providing a reference plan to the court,which is not binding.With regard to the freedom of punishment to end the family procedure,it is necessary to distinguish between situations.The commencement of the family procedure was in principle based on the litigation or application of the parties,so the plaintiff has the right to withdraw the case freely.However,whether the judge is bound by the defendant's pledge is not the same as the plaintiff's withdrawal of the complaint.Because the plaintiff's withdrawal of the lawsuit had the effect of no prosecution from the beginning,and the object of the procedure is not blocked by the objective scope of the res judicata,and the plaintiff could still sue again.??However,the defendant's acceptance of the promise will result in a judicial judgment of losing the lawsuit.The res judicata of the judgment leads to the substantive legal effect of prohibiting another action and restricting the subsequent action.Therefore,the court is not subject to the defendant's freedom to acknowledge and approve,but still needs to conduct a power review.The settlement in litigation is still essentially the judge's exercise of his trial powers,resulting in res judicata,similar to the pledge to require powers to review whether the content has clearly violated legal mandatory provisions,violated public order and good customs,or collusion has harmed the rights of third parties and other situations contrary to the purpose of the family process.Debating doctrine includes three propositions.First,the main facts that directly determine the occurrence of legal effects must appear in the parties' debates,and the court cannot use the facts that the parties do not claim as the basis for the judgment.Second,the court should serve as the basis for a judgment on the fact that neither party has disputes.In other words,the court should be bound by the parties' self-recognition.Third,the investigation of evidence by the court is,in principle,limited to the evidence presented by the parties,and does not allow the court to actively investigate the evidence in accordance with its authority.The first proposition and the third proposition can be viewed in combination,forming a surface-surface relationship.The second proposition emphasizes the self-recognition of "trial exclusion effect" and the binding force on the court.Regarding the first and third propositions,the situations that are amended in the family procedure are mainly: in situations that are conducive to maintaining the marriage relationship;based on the needs of public policy,judging whether the marriage relationship is valid and effective;children are best Benefit protection situation.In non-litigation proceedings,the judge may examine the facts and powers that the parties have not claimed to investigate and obtain evidence.Regarding the self-confidence of binding,the above-mentioned standards can also be applied.Under the above circumstances,the self-confidence of the parties does not have a binding effect on the “trial exclusion” of the court.The first proposition and the third proposition can be viewed in combination,forming a surface-surface relationship.The second proposition emphasizes the self-recognition of "trial exclusion effect" and the binding force on the court.Regarding the first and third propositions,the situations that are amended in the housework procedure are mainly: in situations that are conducive to maintaining the marriage relationship;based on the needs of public policy,judging whether the marriage relationship is valid and effective;the situation of the principle of protecting the best interests of children;trial by non-litigation procedure.Under these circumstances,the judge may examine the facts and powers that the parties have not claimed to investigate and obtain evidence.Regarding the self-confidence of binding,the above-mentioned standards can also be applied.Under the above circumstances,the self-confidence of the parties does not have a binding effect on the “trial exclusion” of the court.Res Judicata refers to the determination of the substantive effect of civil judgments,including: the judgment on the substantive claims in the judgment becomes the basis for regulating the civil legal relationship between the two parties;neither party can re-sue or propose different Claim;the court shall not accept the case again or make a different judgment on the same substantive matter.It is said that non-litigation rulings are not subject to conviction in principle due to uncertain factors such as future situation changes,but this is only from the perspective of the prohibition of other actions and the restriction of subsequent actions.The basis for regulating the parties' civil legal relationship still has this effect in non-litigation rulings.In addition,in order to achieve a unified treatment of legal relationships and a stable identity order,the judgment of family status relationship litigation has effect on the world and has modified the relative effect of general civil judgments.Mediation is an important way to resolve family disputes.Court family mediation has also gained theoretical legitimacy and practical recognition.Many countries and regions around the world have even established compulsory mediation mechanisms for family disputes before litigation.In the non-litigation mechanism,family cases that are difficult for the parties to resolve on their own are submitted to the court for judgment.Therefore,it is necessary to distinguish between these family cases which are not applicable to court mediation,including family non-contentious cases and family relationship cases involving parties who have no right to dispose.In addition,not all of the identity relationship cases and property relationship cases where the parties have the power to dispose in the family litigation procedure are suitable for mediation.For example,the parties have different abilities,and there is no possibility of equality;there are domestic violence and child abuse;they are mentally distressed and unable to represent themselves;those who have deep grievances and cannot communicate normally;Court mediation is a system within the framework of family procedures,and the excessive reliance on mediation in the above cases would undermine the purpose of the family procedure.On the one hand,the socialization of family affairs procedures refers to the introduction,absorption,and use of social resources outside the national justice system in order to achieve the purpose of family affairs procedures in the trial of family affairs cases.On the other hand,it refers to the evaluation of the social effects of the results of family trials,not just the legal effects.In fact,the increasing dependence of society on justice has led to the generalization and even alienation of judicial functions.The socialization of family affairs procedures should also establish a reasonable order framework to prevent the socialization of family affairs procedures from diluting the core function of judicial adjudication,thereby jeopardizing the credibility of justice.The social effect of the family procedure should also be the radiation effect produced by the procedural rules and judicial decisions.Th...