Research On The Family Procedure

The family case is different from the general civil case,the characteristics and the nature of their own,and personal feelings,both family and ethical aspects.As the basic cell of the society,the harmony and stability of it is not only related to the legitimate rights and interests of the parties and minors,but also affect the social harmony and stability to a certain extent.Therefore,solving the family cases properly is necessary to protect the legitimate rights and interests of the parties and maintain social harmony and stability.Because of the family case itself privacy,personal property,and the importance of emotion involved in the maintenance of social order,the status of relations of family cases in which object is the family litigation,the scope of acceptance,value orientation and other aspects of the general civil procedure in different cases.However,in our country's judicial practice,due to the inability to apply the law,we still apply the common civil procedure to deal with family cases.Application of the general civil procedure with family cases,have the following shortcomings: first,the direction of the trial mode of general civil procedure is to absorb the adversary system litigation model,give full authority to the parties,they need positive debate on evidence and its own merits.the parties of the case who belongs to the family have intimate relationship with family members,the fierce trial mode isn't helpful to properly resolve family dissension.Second,the general civil litigation,in addition to the provisions of the civil case law applicable to the principle of open trial.Most of the family cases are related to personal privacy,the use of public hearing is not conducive to the protection of personal privacy between family members.Third,the general civil procedure requires the pursuit of efficiency,the "quick fix" may be solved originally by the gentle way of dispute worsened,family conflicts upgrade,even lead to other adverse social consequences,the destruction of the social order,which is not conducive to maintaining family harmony and social stability.Therefore,we should set up a suitable family litigation procedure according to the special nature and characteristics of family cases.This article consists of four parts:The first part expounds the basic theories of family proceedings.Mainly from theconcept and scope of the family litigation,family litigation procedure definition,the particularity of the family litigation proceedings and the legal value of family procedure and so on four aspects,some basic theories of family proceedings are combed,with it can clarify the nature and characteristic of the family litigation procedure,then set up a suitable procedure.The second part expounds the necessity and feasibility of setting up the family procedure in our country.Mainly combining with current relevant legislation and judicial practice in our country,from the lack of legislation,increasing family cases but the lack of corresponding family proceedings and other aspects to discuss the necessity of setting the family litigation procedure in China.At the same time,from the theoretical basis of setting the family proceedings,the change of people's litigation concept,The experience and lessons accumulated in the practice of legislation and judicature in our country,extraterritorial successful experience to discuss the feasibility of setting up the family procedure in our country.The third part is the comparison and reference of extraterritorial family procedure.Mainly introduces the other countries and regions of the family proceedings related systems,including the screening of legislative bodies,staffing of the family court,prosecutor participation system,etc.Through the comparative analysis,this paper puts forward some reference for our country,in order to offer theoretical guidance and the practical experience to set up the family proceedings in our country.The fourth part builds the family litigation procedure in China.First of all,the basic principles of the whole process should be established according to the particularity of the family cases throughout the family proceedings in our country.Secondly,put forward some proposals of setting up family litigation procedure in accordance with the specific circumstances of China,including the selection of legislative model,the definition of case scope,specific jurisdiction ownership rules,judicial institutions,evidence rules,conciliation procedures and specific court rules in seven aspects.