The Problems In Domestic Trial And The Setup Of China's Domestical Trial Procedure

Domestic trial procedure is the trial procedure to settle domestic disputes and belong to the category of special civil procedure. Currently, China's Civil Procedure Law does not define an independent mode of domestic procedure. The academic world has gradually realized that domestic disputes are different from property disputes and need an appropriate trial procedure, but we still lack a profound and systematic research of the nature and traits of domestic trial. In practice, the particularity of domestic trial has not been widely recognized, and most of the rules of property trial have been adopted, such as adversary lawsuit mode and the principle that the party has the responsibility to provide evidence in support of one's own proposition. Such practices may prevent the protection of privacy, harm the harmony of family life and even lead to social unstablility. In all, the absence of procedure mode and the defect of law cannot meet the practical demand of domestic trial. This article is based on the experimental work of the domestic trial collegial panel of Huangpu District Court, Guangzhou. It analyzes the problems of the traditional domestic trial and the importance of domestic trial procedure, and then explores the special requirements of domestic trial procedure to meet the demand of professionalization, pointing that domestic trial should differ from common civil trial and adopt the doctrine of ex officio. Meanwhile, with examples from the experimental court, the article illustrates such exploratory practices as the three-step procedure of "Mediation, Adjudication and Protection" and the involvement of psychotherapy in case of mental-disabled litigants. It also justifies the practice of the doctrine of ex officio in domestic trial, in the hope of providing some reference for the setup of China's domestic trial procedure.Besides the introduction and conclusion, the article can be divided into four parts. Part 1 introduces the domestic cases that Guangzhou Huangpu District Court has dealt with for the latest three years and gives a statistic analysis. Part 2, based on trial practice, points out the problems of the current domestic trial, such as the absence of an independent mode of domestic procedure, the adoption of the evidence principle of common civil trial and the ignorance of emotions and feelings involved in domestic cases. Part 3 examines the jurisprudent base and value of domestic trial procedure and introduces foreign legislation of domestic trial, in the hope of providing some theoretical and practical reference for the setup of China's domestic trial procedure. Part 4 analyzes the special requirements of domestic trial, and gives an institutional design of China's domestic trial procedure on the basis of the juridical practices of the experimental court.