The Questioning Of Non-litigation In Invalid Matrimonial Case

At present our country’s invalid marriage stipulation only can be seen in the marriage law and its judicial explanations which mostly regulate from the entity aspect,while the procedural norm is very few.The relevant design of the trial procedure of invalid matrimonial case is scattered in the judicial interpretation of matrimonial law.Although the judicial interpretation of the marriage law makes a corresponding distinction in the lawsuit procedure against the difference between the invalid cases and other cases,the rules are mixed,the system is disordered,and the system arrangement is short of good applicability.And in the trial practice,when the judge hears the invalid matrimonial case,it often simply applies the procedure rules of the ordinary lawsuit cases,ignoring the characteristics of its commonweal,causing the principle of the doctrine of power to be nowhere to be used,or mechanically applying the rules of special procedures directly,ignoring the existence of the litigation.The cases of invalid marriage,which are both contentious and commonweal,should be differentiated from the ordinary property cases in the system arrangement of the lawsuit procedure,and should be different from other status cases.Therefore,it is necessary to clarify the nature of invalid matrimonial cases,to determine the appropriate procedures applicable to invalid matrimonial cases,with a view to the development of the trial procedure of invalid matrimonial case in our country.This article is divided into four parts and the total number is more than 30,000 words,except the introduction.The first part is the nature of invalid matrimonial cases.The main is to determine the distinction between litigation and non-litigation cases,the characteristics of invalid matrimonial case and so on.Judging litigation case and non-litigation case from the case of dispute,litigation case is obviously related to the rights and obligations of the parties,and it also pays attention to procedural protection.The litigation of non-litigation case involves the confirmation of legal facts or legal relations with commonweal,and pursues the efficiency of lawsuit.After comparing and analyzing the characteristics of litigation and commonweal of invalid matrimonial cases,the conclusion that the invalid matrimonial case belongs to litigation case is the basis of the thesis.The second part is the present situation and the flaw of the application procedure of invalid matrimonial case in our country.Through analyzing the legislative status of the trial procedure of invalid matrimonial cases,it is found that there is little procedural rule corresponding to the trial of invalid matrimonial cases in the specific civil procedure norms,and the judicial status quo of the application of the trial procedure of invalid matrimonial cases,through the application of litigation procedure and special procedures.It is found that the applicable litigation procedure is better to deal with invalid matrimonial cases,and in practice,it is consistent with the present situation in China.Furthermore,the article analyzes the defects of the applicable procedure in the invalid matrimonial cases in our country,such as the wrong application of non-litigation procedure,which prevents the parties from seeking redress,and the absence of authority doctrine,and so on.The third part is the necessity and feasibility analysis of applying the litigation procedure in invalid matrimonial case.The absence of legislation and the confusion of judicial practice make it necessary to determine the trial procedure of invalid matrimonial cases.From the judicial present situation of the applicable trial procedure,it is found that the effect of litigation procedure is the best,and the intensity of procedural protection is greater.Furthermore,the necessity and feasibility of applying the litigation procedure in the invalid matrimonial case are comprehensively proved by reference to the relevant regulations of foreign countries such as Germany,Japan and Taiwan.The forth part is the consummation of the trial procedure of invalid matrimonial case.In view of the judicial practice of the trial procedure of the invalid matrimonial cases in our country,especially the confusion of the application of the trial procedure,the article puts forward that the procedure should be constructed on the basis of litigation procedure to construct the trial procedure of the invalid matrimonial case and face the effect of the court’s power intervention.And it mainly puts forward the basic ideas and opinions on standardizing the party appellation and introducing the prosecutor,strengthening the power intervention,allowing the parties to appeal and retrial.