On The Presumption System Of Obstruction Of Evidence In Paternity Litigation In China

Parent-child relationship litigation is a kind of identity relationship litigation,which aims to confirm the personal and property relationship between parents and children.The proof of parent-child relationship has its particularity,among which the proof of essential fact is inseperable with high accuracy paternity test.When the relevant parties do not cooperate with the paternity test,the identification of parent-child relationship becomes a difficulty in judicial practice.On a worldwide basis,the theory of proof obstruction has been proved to be an effective way to solve the problem.Proof obstruction refers to the behavior and consequences of the litigant,other litigant participants and the third party outside who has the obligation of cooperation,intentionally or negligently by way of act or omission,causing the litigant who is oliged to provide evidence to prove whether the facts are true or not,due to no evidence to be ascertained.There are three ways to punish the behavior of improper paternity test refusal: among them,the direct compulsory mode ignores other values besides the real blood relationship,which may violate the right of personality;The model of free psychological syndrome lacks operability;In contrast,the indirect coercive model is more legitimate in China because it proves that impeding presumption is in line with the actual national conditions and the current situation of the trial mode,and it is easy to be accepted by the public.Current family trial reform is picking up,in response to the current status of family disputes which are more complex and the change of people's concept which leads to family crisis,withe an aim of achieving reunification of the fact and applicable law,in 2011,the Supreme People's Court published "Interpretation of the Supreme People's Court on Several Issues concerning the application of the marriage law of People's Republic of China three"(here in after referred to as the marriage law interpretation three),article 2 of the interpretation is the proof obstruction theory in a specific applicable in the field of litigation,established the presumption system of obstruction of evidence in paternity litigation in China,which is an innovation.However,from the perspective of the effect of the operation of judicial practice,there are still many difficulties: on the one hand,the scope of the applicable subject is not clear,which is reflected in the improper restriction of the right of appeal of adult children,the expansion of the right of appeal of any party,resulting in the confusion of the types of litigation,causing ethical and moral crisis.On the other hand,thepaternity test's starting procedure is not clear,and the court has different standards for determining the necessary evidence and the contrary evidence,which leads to different judgments in the same case and damages the judicial credibility.Generally speaking,the value orientation and judicial concept of parent-child relationship litigation have improper tendency,which weakens the exploration of the power of judges,and judicial practice gradually deviates from the original intention of legislation,which is not conducive to the protection of the rights and interests of the weak.The system should be perfected from different dimensions.Firstly,in the aspect of substantive law,the presumption system of parent-child relationship is stipulated,including the presumption of children born in wedlock and children born out of wedlock.On this basis,the author stipulates the denial system and compulsory claim system of illegitimate children,so as to standardize the types of litigation and limit the scope of the subject of litigation right.Second,in the aspect of procedural law,the application of the presumption should have strict preconditions and post-remedy measures,that is,the paternity test applicant provides the necessary evidence,forms a complete chain of evidence,and the standard of proof reaches a high degree of probability.The respondent can not put forward contrary evidence enough to overturn the plaintiff's claim,and refuses to cooperate with the paternity test without justified reasons,which makes the parent-child relationship in a state of uncertainty about the true or false,the whole process of the lawsuit is endowed with procedural rights such as obstructing the person's appeal and defense.Third,change the judicial idea.In the family cases under the synergistic litigation mode,more emphasis is placed on the exploration of the functions and powers of the judges,the role of the family investigator should be given full play to,the mediation should be paid attention to.Based on the pilot experience in various places,the responsibilities,working process and selection qualification of the family investigator should be further clarified.Fourth,in terms of value orientation,according to the principle of the best interests of children in “the United Nations convention on the rights of the child”,which has been ratified by the National People's Congress,the interests of the underaged children should be put in the first place;The interests of adult children and parents come second;Social order,constrained by the above interests,may be at the end of the value orientation.Circumstances impeding the application of the presumption shall be limited by enumeration in order to safeguard the justice of single case.