A Research On The Establishment Of Personnel Litigation Procedure Based On The Exploration Of Judge's Powers

Litigation involving the relation of citizen identity is the personnel procedure.It mainly includes: marriage litigation,parent-child relationship litigation and adoption litigation.These lawsuits must explicitly stipulated by law to determine,because disputes related to the identity relationship always involves the interests of the parties and the state,social public interests,so must be the pursuit of truth to the fact of the case,as far as possible and limit the disciplinary right of the parties,and strengthen state intervention in the lawsuit,detection of the functions and powers.Across all countries,in China's Taiwan region,and Japan due to the effect of German legislative model,have established the personnel litigation procedure,in common law countries,as well as Germany,concerning any personal relationship such as litigation is called the family proceedings.No matter how the specific appellation changes,there is not much difference from the system.For decades in our country civil action has never been involved in the concept of personnel proceedings in the judicial practice,in the specific trial activities involving the identity relationship trial for ordinary civil procedure is the usual practice.However,we must admit that it violates procedural law and affects the real discovery of the case entity,and undermines socialist fairness and justice.Therefore,it is necessary for me to establish a special personnel procedure in our country.The full text is divided into four parts,the specific contents are as follows:The first part,the author first introduces the basic outline of the personnel procedure.After all,there is no human litigation in our judicial practice,so it is always necessary to discuss the basic concepts and characteristics.Compared with the ordinary procedure,personnel litigation procedure system has its own unique,for example,a specific case range,litigious with public welfare as well as the applicable procedural jurisprudence and accusing the legal theory.Then,because it is a foreign product,it is necessary to compare the procedure with ordinary procedures,special procedures and non-litigation procedures in civil procedure in our country,so as to deepen the understanding of the program.Finally,the author investigates the extraterritorial system and analyzes the measures that different countries have in establishing the procedure of personnel litigation.In the second part,the author takes the functions and powers of the judge in the personnel litigation as the perspective,introduces the basic information of the functions and powers and how to implement them in the system.Then carries on the analysis,the reason for the detection of the functions and powers is mainly based on the application principle of proportionality,identity relationship as the subject matter of the litigation of public welfare,entity of real value target,the lawsuit of litigation.In The third part,the topic is the operation and construction of our personnel litigation procedure.The author analyzes the reasons behind the lack of this procedure in China's judicial practice.It is necessary to establish the personnel procedure in our country,in combination with the economic situation of our country,the coordinated development of substantive law and procedural law,and the reality of judicial reform.In The forth part,the author starts from the legislative style,the scope of applicable cases,the establishment of the refereeing institution and some special laws to propose the idea for the construction of the personnel litigation procedure in our country.And finally is the epilogue.