Researching On The Litigation Of Non-child Born In Wedlock In Accepting

The litigation of non-child born in wedlock in accepting is a litigation for affirming the identity relationship between illegitimate children and their father through certain legal procedures.It's an important system for illegitimate children to realize the equal rights granted by law to legitimate children,also known as forced acceptance.The system of acceptance of illegitimate children in Taiwan and other countries such as Japan,France,Italy and Switzerland has been running for a long time,and all of them are equipped with well-programmed litigation.The effect is remarkable in practice,the protection of rights and interests of illegitimate children is evident.The litigation of non-child born in wedlock in accepting(affirmation of parent-child relationship)has existed in China's judicial practice for a long time,but there is little perfect substantive law system on the affirmation of relationship between illegitimate children and their biological father,and the relevant procedural law provisions are even scarce.Only the Supreme People's Court "the Interpretation of Marriage Law(3)" Paragraph 2 of Article 2 provides for presumption of law in the litigation of non-child born in wedlock in accepting.Many perplexity and confusions in judicial practice are still difficult to solve.This paper reveals the whole picture and current situation of the non-statutory type of lawsuit from two perspective of substantive and procedural law,then combining with successful experience of legislation and judicature in major foreign countries(regions),this paper discusses the important procedural issues of the litigation and its related litigations,finally puts forward some suggestions on system construction of the litigation in China from five aspects: jurisdiction,special provisions of parties,special rules of procedure application,methods and standards of proof,limitation of action.In addition to the introduction and conclusion,the text is divided into five parts,total of more than 33,000 words.The first part: On the basis of clarifying the origin and connotation of non-child born in wedlock in accepting,analysing its significance and makes a comparative analysis of the doctrines about its nature,so as to make the appearance of an illegal lawsuit type clear gradually.On this basis,sorting out the current situation of the system by showing the different ways that the courts deal with the litigation of non-child born in wedlock in accepting in judicial practice through three cases.At the same time,it clarifies the significance of constructing the litigation of non-child born in wedlock in accepting in the absence of existing legislation.The second part: From the perspective of comparative law and comparative practice,conducting a normative study on the procedure of litigation of non-child born in wedlock in accepting,combined with the different regulations of Taiwan,Japan,France,Italy,Switzerland and other countries outside China,analysing the peculiarities and basic jurisprudence of the application of claim procedure.Mainly detailed description of four aspects from the litigation of non-child born in wedlock in accepting :The eligibility of the parties,prosecution period,litigation inheritance and the effectiveness of the judgment.The third part: Discussed the related litigation of the litigation of non-child born in wedlock in accepting.Postmortem accepting litigation is the application of time relaxation in ordinary sense of the litigation of non-child born in wedlock in accepting;the litigation of discharging the acceptance is to appeal to the court to cancel the acceptance already made;the litigation of acceptance invalidity is to appeal to the court to confirm that the acceptance made is invalid;the litigation of acceptance denial is to appeal to the court to remove the effectiveness of acceptance already made.These four litigations are closely related to the claim lawsuit in theoretical connotation and have their own characteristics in the application of the procedure.They are unavoidable problems in deeply grasping the procedural principle and construction of the litigation of non-child born in wedlock in accepting in China.The last part: Drawing lessons from foreign procedural legislation experience,combining with the characteristics and reality of family trial in China,constructing our country's litigation system of non-child born in wedlock in accepting.We should establish the principle of the exclusive jurisdiction of the courts where the children born out of wedlock are located;clarify the special qualifications of the litigants in litigation of non-child born in wedlock in accepting,and define their eligibility criteria;refine the procedural rules of the litigation of non-child born in wedlock in accepting and its related litigation;standardize the methods of legal presumption and paternity testing and establish the same standard of proof as common civil litigation cases;distinguish the applicable mode of limitation of action between the litigation of non-child born in wedlock in accepting and postmortem accepting.