Study On The Paternity Suit

The civil substantive law in China provides illegitimate child the same right as the legitimate one, but in real life, the children born out of wedlock are often subjected to discrimination and ill-treatment. So how to design a proper procedure for them to recognize their biological parents legitimately should be the public concerns. However, the Supreme People's Court has removed the"dispute of confirming the biological parents"from the Code of the Civil Cause of Action, rendering the illegitimate child difficult to obtain appropriate relief. Out of this point, this thesis demonstrates the paternity suit should be an independent cause of action in China. Meanwhile, through analyzing the traits of paternity suit, this thesis discusses the eligible parties and the testimonial issues by means of comparative law analysis. This thesis is divided into the following sections:The introduction part mainly presents some concepts of civil substantive law which is corresponding to the paternity suit, and verifies the scope and writing intentions of this dissertation.The first part is an overview of the paternity suits. Through the introduction of the type of paternity suits from extraterritorial legislation, this part defines the concept of paternity suit and describes three main features the suit hereof, which provides a criteria for the following further analysis.The second part proves the paternity suit should be irreplaceable in China. The arguments are divided into three aspects: In theory, the suit has not only its own Subject of Procedure, but also its own Benefit of Suit that Action Praescriptis Verbis can not covered; in reality, it is also in need of an independent suit to solve new problems emerging; in legislation, there are some provisions of the legislation related to specific problems of paternity suit and some legislative proposals about the suit hereof.The third part analyzes the proper party of paternity suit under different situation primarily by comparing the extraterritorial practice with domestic condition, and upholds an opinion that the proper plaintiff should be the illegitimate child only while the eligible defendant could be the biological father accused and his base lineal relatives.The fourth part, as the highlight of this thesis, discusses the testimonial in paternity suit. First of all, the Burden of Proof still exists in the suit hereof, and it still belongs to the complaint. Secondly, since the complaint remains bearing the Burden of Proof, the Standard of Testimonial should not be set up too high, in case of engraving the difficulties of the illegitimate children exercising their right. Thirdly, this part specifies types of evidence that can prove the affiliation and identification in dispute, including indirect evidence and direct evidence. Last but not the least; pursuant to the practice of three different legislations, this thesis demonstrates that the judge could draw an adverse presumption to whom refuses to cooperate with the paternity testing, which does not contradict to the doctrine of Personnel Action.