Research On The Principle Of Restrictive Disposition In Family Litigation

The principle of restrictive disposition is not a written concept in the current civil procedure law,but in family litigation,both the current legislation and the judiciary be involved with restrictive disposition.The principle of restrictive disposition is a concept opposite to the principle of disposition.The broad principle of disposition includes not only the principle of the parties,but also the principle of debate,that is,not only the procedural disposition,but also the disposition of some factual content.Therefore,while the principle of restrictive disposition extensively restricts the procedural rights of the parties,it should also restrict the disposition of some factual contents.With the development of the global family procedure law,the traditional dual separation theory can no longer meet the needs of the family procedure law.As a non-litigation principle,the application of the principle of restrictive disposition complies with the trend of the interlaced application of the procedural law and the non-litigation law in family proceedings.Family is an important part in society.Family stability is an important prerequisite for social stability.Family disputes involve not only the interests of the parties,but also the interests of other family members,and additionally the public interests of the whole society because of their special public welfare attributes.Because of the identity and public welfare of family cases,the disposal of family cases should not be completely followed the traditional principles of civil procedure law.It is necessary to establish the principle of restrictive disposition as a basic principle of family procedure law,and improve the relevant systems that are compatible with the principle of restrictive disposition.In the future legislation of family procedural law in China,it is necessary to establish the principle of restrictive disposition to meet the needs of the characteristics of family cases,the socialization of marriage and family relations.the goal of dealing with family cases,and the objective,authentic and substantive fairness of family lawsuits.At present,the principle of restrictive disposition is not explicitly stipulated in our legislation.It is scattered in some departmental laws and regulations as well as judicial interpretation.From the current relevant legislation,judicial interpretation and judicial practice in China,we can find that there are some deficiencies in the legislation of the principle of restrictive disposition,and there are also some problems that need to be improved in judicial practice.From the perspective of the lack of legislation,the principle of restrictive disposition has not been confirmed by legislation,the law does not determine the power of procuratorial organs in family lawsuits,and the law does not determine the power of judges in family lawsuits.Family judges lack greater idiscretion in judicial practice.In order to improve the relevant systems that are compatible with the principle of restricted disposition,in the part of procuratorial organs,procuratorial organs should be empowered to participate in family lawsuits,they should take the initiative to initiate lawsuits in identity-based family cases without prosecution,and they should supervise and prosecute in identity-based family cases with prosecutors,and mediate in court in family cases involving minors.Judicial supervision shall be carried out in cases of human interests and social public interests.In the part of the court,the court should be endowed with the power of inquiry when hearing family cases.It should consider the facts of the cases that the parties have not raised,investigate and collect evidence according to its power,pursue the substantive justice of family cases,and give family judges greater discretion when hearing family cases.Family judges should give full play to the subjective initiative of the judiciary and consider the comprehensive factors of the cases;to make the most just and appropriate judgment.From the party's point of view,it is necessary to restrict the party's right of disposition in family cases involving identity relations and public interests,including the restrictions on the party's procedural rights and some factual content.