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Research On Family Non-litigation Procedure

Posted on:2020-12-03Degree:MasterType:Thesis
Country:ChinaCandidate:C JinFull Text:PDF
GTID:2416330596480602Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
From the perspective of substantive law,civil cases heard by the court can be divided into ordinary property cases and family cases centering on identity relationship,so it is necessary to establish an independent family trial procedure.Program to match theory,the judicial power of the nature of duality theory,program benefit theory for housework trial procedure is divided into the family proceedings and the family provides the theoretical basis,the non-litigation procedure we should according to the nature and characteristics of the family case to distinguish for the case that the family litigation and housekeeping,and one for each of the family proceedings and housework the non-litigation procedure.But at present,there is no independent family trial procedure in China,including family non-litigation procedure.This is not in line with the trend that countries and regions around the world have established non-litigation procedures for family affairs,and cannot meet the judicial needs of the contemporary society,thus restricting the development and improvement of China's civil procedure system to a certain extent.On the basis of referring to the specific systems and regulations of foreign countries and regions,this paper analyzes and interprets the non-litigation procedure of family affairs in detail from the aspects of basic theories and legislative provisions,and puts forward the assumption of constructing the non-litigation procedure of family affairs in China.In addition to the introduction and conclusion,this paper is divided into four parts,corresponding to four chapters.The first chapter,the family non-litigation procedure theory elaboration.At the beginning of the article,the author expounds the scope of non-lawsuit cases of family affairs,which includes not only the traditional non-litigation cases of family affairs,but also the non-lawsuit cases of family affairs.Secondly,the concept of family non-litigation procedure is defined.Then explain the theoretical basis of family non-litigation procedure,namely procedure proportionality theory,judicial nature of duality theory,procedure benefit theory;Finally,it introduces the function of family non-lawsuit procedure from three aspects: preventing family dispute,solving family dispute quickly and guaranteeing social stability.The second chapter,overseas family non-litigation procedure of the legislative review and analysis.While the success of the reform of a legal system depends on many factors,the wide use of comparative law is undoubtedly an important one.This chapter studies and compares the non-litigation procedure legislation of family affairs in Germany,Japan and Taiwan,explores the similarities and differences of relevant overseas legislation,and analyzes the enlightenment of overseas legislation on the development and improvement of China's non-litigation procedure system of family affairs.The third chapter,legislation and practice of non-litigation procedure of family affair in China.This part firstly introduces the current situation of the legislation of family non-litigation procedure in China,and then points out that there are some problems in the legislation of family non-litigation procedure in China,such as scattered regulations,weak content and non-independence of procedure.Secondly based on the judicial practice,the typical family in judicial practice of our country the case that the comb,and then from the lack of the family litigation and the family of the non-litigation dual differentiation of consciousness,the family not the type of the case that a single,the referee form has not been unified and family cases combined stays in the primary defect in judicial practice,attempts to stage such as perspective in order to make clear the family need developing direction of non-litigation procedure.The fourth chapter,consummates our country family matter non-litigation procedure suggestion.In this part,based on the previous three chapters' analysis and analysis of the basic theory of non-litigation procedure in family affairs,overseas legislation,and the relevant studies on legislation and practice in China,and combined with the defects in the existing legal provisions and problems in practice proposed in the third chapter,the author proposes to construct the specific ideas of non-litigation procedure in family affairs in China.In terms of legislative mode,this paper argues that China should,on the premise of establishing a separate and unified family trial procedure law,juxtaposition the family non-lawsuit procedure and the family lawsuit procedure,and place them in the family trial procedure law at the same time,and stipulate them in the form of a special chapter.In terms of the scope of application,this paper argues that the scope of application of non-litigation procedure in China's family affairs should be appropriately broadened on the basis of existing non-litigation cases in family affairs,and non-litigation family litigation cases should be recognized.The trial principles of family non-litigation procedure include the principle of restricted disposition right,the principle of power and authority inquiry,the principle of combination of public trial and private trial and the principle of free proof.This paper endorses the concept of "relationship person" and believes that the procedural rights of relationship person should be guaranteed to some extent.Concerning the termination of non-litigation procedure in family matters,this paper believes that it should be made in the form of a ruling.Finally,this paper discusses the self-consolidation of family non-litigation cases,the merger of family non-litigation cases and family litigation cases.
Keywords/Search Tags:Family cases, Non-litigation procedure, Non-litigation
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