Construction Of China's Family Trial Proceedings Is Envisaged

With the welfare country's rising, the traditional thought that law should not intervene the domestic troubles is broken by modern legislatures since the entrance of the 20th century. Family autonomy is got involved in by judicial organ and administrative organ in the name of protecting the weak through legal authorization and the thought above is embodied in domestic procedure devised for solving the domestic dispute. For the demand of maintaining the stability of social order and protecting the public interests is becoming widespread all over the world. The phenomenon is not accidental. It has its profound jurisprudential base and practical value.The article is divided into four parts.Party one is the outline of domestic procedure. On the basis of defining the concept, object and scope of domestic procedure, the domestic procedure has the characteristics in contrast with the common civil procedure as the followings. The first is that two parties to a case must appear at court, because most of the domestic troubles are the disputes between the relatives and the member of family. The domestic troubles are not only involved in many emotional factors and life mistakes in a certain degree. The most important reason is that the status of the parties is not alternative. The second is the speciality of the change and amalgamation of the action. For solving the dispute for once, avoiding the long indetermination of identity relation and the court's finding the reality, domestic procedure allows the parties concerned to change litigation and amalgamate litigation. The third is the privacy of domestic procedure. The procedural openness will not only make the parties' secrecy and emotional life exposed to the public and infringe the privacy but also endanger personal dignity. The procedural openness will make citizens lose the confidence of settling the domestic disputes through judicial procedure.Party two analyses the independent value of domestic procedure from three aspects. The first is that the importance of the family is its social base. The stability of social order depends on the domestic peace and harmony, so in modern society the family is regarded as the important factor of the social stability. The second is that the specialty of the domestic affair is the existing objective demand. Because of the characteristics of the public welfare, privacy, the demand on mediation, the complexity of the parties concerned, the prediction of the outcome and the request forthe fairness and efficiency of the judgment, the domestic judgment as a kind of mixed judgment can meet the peculiar requests of the domestic troubles. The third is that to think the special principle applied to domestic proceeding is the inevitable request of procedural jurisprudence. Domestic procedure demands the crossing application of the principles of the doctrine of judge center, the justification of parties, the adjudged force, the limited handling and preferential mediation, ect for meeting the demand of the peculiarity of the domestic troubles.Party three introduces the origin and development of domestic procedure in common law and civil law and contrasts them. The special procedure concerning the identity relation has a long history and develops with the procedure of common law and even law. Domestic procedure originates in German in civil law. The procedure of the marriage affair has its specialized provisions different from the common civil procedure in German. Although these are different characteristics for different historical customs and cultures in different countries, there are common characteristics as the followings. One is that the specialized organ is established to settle the domestic conflict. Another is that the principles of the doctrine of judge center and mediation are extensively applied to domestic procedure.Party four reconsiders Chinese domestic procedure and put up the ideas of constructing Chinese domestic procedure. The party introduces present condition of Chinese domestic procedure and analyses the obvious b...