Duality Of Procedures On Family Trial

According to the nature of different cases,setting up the corresponding trial procedures and rules system is the consensus of civil procedure legislation.Family cases are different from ordinary civil cases dominated by property relations because of personality,privacy,and public welfare.Our country's exploration of the family trial procedure is still in its infancy.There is no special trial procedure for the family case,resulting in confusion in the application of procedural legal principles and procedural rules.The principles of disposition doctrine,debate doctrine,and public trials that are pursued in civil procedure are incompatible with family cases.In the civil procedure pursuing the protection of the rights of the parties,certain family and non-lawsuit cases with high efficiency and quickness demand cannot be handled properly.This is detrimental to maintain public welfare(such as the interests of underage children).Therefore,under the background that Supreme People's Court implements "Family Trial Reform" across the country in 2016,this paper is to classify family cases into family litigation cases and family non-litigation cases according to the nature of the cases,and to build the family cases category binary structure system.This paper takes the classification of family cases as the logical premise of the duality of procedures on family trial,and further analyzes the propositions of procedural legal application and the design of rules and systems.In order to promote the substantive progress of the reform and achieve the goal of integrating the construction of family trial procedures.This article has a total of about 5,0000 words.The text consists of four parts.The first part: The present situation and reform of the trial procedure in China.The trial of family cases currently faces difficulties such as the proliferation of family cases,complex relationships,and diversified types of disputes.However,due to the lack of systematic division of family case types and absence of family trial procedures,only the applicable civil procedure law can be invoked to solve the problem.This further confuses the application of procedural rules.Therefore,although the “Family Trial Reform” implemented by the Supreme People's Court in 2016 has achieved certain results in local trial courts,the lack of systematic awareness of the type system of family cases and the dualistic differentiation of family litigation and non-litigation of results in a delay in the reform of family trials.The second part: The legislative style and development model of extraterritorial familytrial procedure.Civil law countries and regions have set up an independent family trial procedure law.In Germany,Japan,and Taiwan,the choice of a single legislative system is the legislative trend of the civil law family trial procedure.There are three representative models in the legislation: The first is the dual differentiation model under the separate text.That is,in the separate texts,the “family litigation trial procedure” and the “family litigation non-contentious trial procedure” are respectively stipulated,represented by Japan.The second is the dualistic differentiation model under the unified text.That is,in the unified text,both the “family litigation trial procedure” and the “family litigation non-litigation trial procedure”are stipulated,represented by Taiwan.The third is the dual integration model under the unified text.That is,in the single-line "Non-litigation Procedures Law",the "non-litigation" trial procedure is uniformly configured for two types of family cases,represented by Germany.Finally,this paper proposes that the dual classification of family cases should be the logical starting point for the single legislation of China's family trial procedures.The third part: The dualism and category system of family cases.As the logical starting point of the family procedure legislation,the dual differentiation of the family trial procedure stems from the duality of the family case classification.On the basis of establishing the macro scope of the type of family cases,this article takes whether there is a need for the state to provide protection and care obligations(public welfare),discretionary levels,and the degree of opposition between the parties' rights and obligations(fighting strength)as a standard for the classification of family litigation and non-litigation cases.The establishment of the dual-structure system of the family case category aims to establish a family trial procedure.The fourth part: The development path of family trial procedure in China.This paper proposes that China's future legislation on the family trial legislature and the dual-divided legislative model under the unified text.And under the premise of establishing the dual structure system of the family case category,this paper proposes the integrated structure of the family trial procedure,including the application of basic legal principles,the establishment of family trial institutions,and the setting of rules for family trial procedures,in order to achieve the substantive goals of “Family Trial Reform” in China.