The Research On The Reform Of Family Trial

In April 2016,the supreme people's court promulgated “Opinions on Conducting Trial Work of Family Trial and Reform of Work Mechanism” and “Notice on Launching Trial Work of Family Trial and Reform of Working Mechanism in Some Courts”,selecting about 100 basic people's courts and intermediate people's courts nationwide,and launching a two-year pilot project on family trial methods and work mechanism reforms from June 1st,2016.The family trial reform is in full swing and good development.However,it is also important to note that the current reform pilot is decentralized,there is no unified reform measures,and there is no institutional support and guidance.Therefore,it is necessary to systematically summarize and study the scattered practices.With the history of family trial as a starting point,this paper summarizes the practice of the pilots in Shanghai and combines the characteristic of the family trial in continental law system to build the basic theory,legislative model and practice path of family trial applicable to China.The full text will be divided into four parts:The first part introduces the background of China's family trial reform.First of all,this paper conducts an in-depth study of the historical evolution of the family-judicial system,sorts out the changes in the family trial system from ancient times to the present,and seeks historical sources for the current reform of family trials.Then it analyzes the background of the family trial reform: on the one hand,the number of family cases is large,the types of cases are abundant and challenging;onthe other hand,the concept of refereeing in family cases has changed quietly,from the original focus on the treatment of property relations to the emphasis on the restoration of family relations.The current hardware and software settings of the courts are difficult to meet these new changes and new requirements.The second part mainly examines the legislative procedures of the family cases in civil law countries and regions,and extracts advanced experiences that can be used for reference.In terms of the family case procedure,the experience of Germany,Japan and Taiwan,China deserves our reference.This section separately analyzes the law of family procedure in three typical civil law countries and regions from the aspects of legislative background,legal process,actual operation and written features,and summarizes their common points,such as stressing the integration of family affairs,implementing the principle of maximizing the interests of minors,paying attention to the procedural guarantees of the parties and stakeholders,and emphasizing the role of mediation.These summaries provide references for the reform of China's family trial system.The third part focuses on the empirical investigation of China's national trial reform,and takes the practical experience in the family trial reform of the People's Courts in Shanghai Xuhui District,Jingan District,and Putuo District for example.There are some common deficiencies: the degree of specialization of family trials is relatively low,there is still space for the development of the protection of minor children's interests,and the solution to family disputes needs to be enriched,which lay a solid foundation for the following discussion.The fourth part takes the current reform experience of our country as the background and uses the family trial system in civil law countries and regions as the basis for reference.It interprets the inadequacies of the reform of China's family trial system and forecasts the future of the reform.This section focuses on four aspects of our family trial system.First,the specialization of family trials.We shall formulate special rules for family trial procedures by building specialized family courts and family trial teams to examine the most important path of family cases.Second,the foundation of trial rules that are consistent with the characteristics of family cases.Wemay set up a period of emotional calmness,implement a comprehensive system for property declaration,and give full play to the protection of personal safety protection orders in family cases involving domestic violence.Third,the protection of the interests of minor children.It shall be the focus of family trials.We shall establish the basic principle of maximizing the interests of minor children,protect the right of hearing of adult children,and give minor children humane care and love.Fourth,the improvement of the diversification dispute resolution mechanism.Focus on how to fully play the role of mediation in the family trial system,solve the problems while repairing the relationship between the parties.At the same time,the court may cooperate with other departments,the judges and other professionals may work together to improve the family trial system.