Research On The Legislative Model Of Non-litigation Procedure

With respect to non-litigation procedure,China's research is still in the theoretical stage.And compared with litigation procedure,results of non-litigation research are quite scarce.However,non-litigation procedure,as a civil trial procedure parallel to litigation procedure,cannot be underestimated in its role in preventing and resolving civil disputes.Open our eyes to the civil law countries and regions,several major countries and regions have quite complete non-litigation theories and non-litigious legislation.In the legislative model alone,there are Separate Legislative Model represented by Germany,Japan and Taiwan,and Unified Legislative Model represented by France and Macao.Under the Separate Legislative Model,several countries and regions have also re-differentiated in order to comply with social development and meet judicial needs,which shows that non-litigation legislation has been quite complete outside the domain.In terms of theoretical research,extraterritoriality is also quite well studied in the terms of the scope of non-litigation incidents,legal principles of non-litigation procedures,procedural guarantee,etc.,which is reflected in the corresponding legislation.Therefore,China should strengthen the research of non-litigation theory and speed up the process of non-litigation legislation.This paper uses the comparative research method,combined with the empirical research method and the annotation research method.Based on the research and analysis of the basic theories of non-litigation incidents and non-litigation procedures,the author focuses on the two extraterritorial legislative models and three re-differentiation forms,which will provide a strong basis for China's non-litigious legislation in the choice of legislative model,the structure of codex system,the setting of scope of application and the choice of procedural legal principles,and make my own judgment and choice.This paper has five chapters.Chapter 1 introduces the basic theories of non-litigation incidents and non-litigation procedures.Non-litigation incidents cause the establishment,change and termination of private law relationships.There are significant differences in the nature and characteristics between litigation incidents and non-litigation incidents.Non-litigation procedures are used to hear non-litigation incidents.They are essentially different from litigation procedures and administrativeprocedures,which have obvious procedural features and unique functions.There are also differences between the special procedure,the urging procedure and the public notice procedure in China's current “Civil Procedure Law”.Chapter 2 clarifies the Unified Legislative Model of non-litigation procedure.This model is to stipulate non-litigation procedures in the civil procedure law.France and Macao adopt this method,but there are also differences,mainly reflect in the structure and scope application of codex.France uses the “procedure” as a clue to delimit the non-litigation procedure rules in various sections of the civil procedure law.While Macao sets non-litigation procedures in one chapter with the “incident” as a clue.Chapter 3 clarifies the Separate Legislative Model,which is to establish separate non-litigation code outside the civil procedure law.Germany,Japan and Taiwan all adopt this method,but in the course of continuous development,re-differentiation occurs,which specially reflect in the separate or unified legislation on civil,commercial and family non-litigation incidents.Chapter 4 is about the comparison of the two models.In addition to comparing the Unified Legislative Model and the Separate Legislative Model,the three forms of re-differentiation are also been compared.The five civil law countries and regions mentioned have their respective characteristics in terms of legislative model,code structure,scope of application and procedural law principles.Chapter 5 discusses the choice of the legislative method of non-litigation procedure in China.After comparing the extraterritorial non-litigation legislation in detail and reviewing the current status of legislation in China,the author finds many problems and analyzes the reasons.Finally,the author makes an assumption on the future non-litigation legislation in China.