Study On Presumption And Disaffirmation Of Paternity

Paternity is an important part of marriage and family relations. Although there is regulation on child born in wedlock in our country, however, legal institution on the presumption and disaffirmation of paternity is absent. The dispute on paternity in judicial practice can only be judged in accordance with judicial interpretation of the Marriage Law of People's Republic of China by Supreme People's Court. Recently, the Supreme People's Court has made the third judicial interpretation for the Marriage Law of PRC, in which the Second Article has stipulated specifically for the presumption and disaffirmation of paternity, which is undoubtedly a greater progress compared with the Article 25 of the Marriage Law of PRC in 1980. Nevertheless, comparing with practical need and the legislation on paternity of many developed countries, much defect is to be improved. This paper, started with the legislation on the presumption and disaffirmation of paternity in real life, introduces the basic theory thereof and regulations on this aspect in foreign laws, and further to discuss it. This paper is to put forward certain advice on legislation thereof, so as to do contribution to China's legal system. The whole paper is about 23,000 words.This paper consists of four parts besides the introduction and conclusion:In the first part, presentation of the problem. The main content is:putting forward the main problem and focus of the dispute by introducing two typical cases on the presumption and disaffirmation of paternity.In the second part, an overview on the basic theory of the presumption and disaffirmation of paternity. the main content is:the introduction of the concept of child born in wedlock, child born out of wedlock, paternity, and the presumption of paternity, the principle and reason of the presumption of paternity, the concept, principle and reason of the disaffirmation of paternity and the disaffirmed obligee, and the presentation of the basic theory thereof.In the third part, investigation and discussion of cases on the presumption and disaffirmation of paternity of foreign laws. This part mainly introduces the regulation in legal institution on the presumption and disaffirmation of paternity in the civil law system and the common law system in such countries as France, German, Italy and Japan, and compares and discusses the legal institution on the presumption and disaffirmation of paternity in the civil law system and common law system. In the fourth part, advice on deficiency and perfection of the legislation on the presumption and disaffirmation of paternity in mainland of China. This part mainly introduces deficiency in the institution on the presumption and disaffirmation of paternity, and proposes advice to perfect the legislation on the presumption and disaffirmation of paternity in our country based on the legislative experience of various main countries and regions and the predecessors research results. This part is the key of this paper.