| In today’s society,the family still carries the functions of reproduction,protection and education of offspring.Family harmony is not only related to the happiness of a small family,but also to national stability and social peace.So,family litigation has a strong public welfare attribute.This requires that the trial organization should adopt the power of inquiry in family litigation,and actively assume the social function of stabilizing,repairing,and treating marriage and family on the basis of a high degree of fact discovery.From a legislative perspective,our country has not yet formulated a special family procedure law at this stage,and judicial reforms in the field of trial practice are deepening and transforming in the direction of being led by the parties.This change has brought historical changes to the trial of property cases,but has brought a lot of confusion to the trial of family cases,and it is difficult to maintain the public interest of family lawsuits,which seriously affects the effectiveness of the trial of family cases.Therefore,it is necessary to conduct a systematic study on the judge’s out-of-court investigative power in family litigation.The main body of this article has four parts,a total of 30,600 words,and the main content is as follows:The first part is an overview of judges’ out-of-court investigative powers in family litigation.This part defines the meaning of the judge’s out-of-court investigative power in family disputes,family litigation,and the judge ’ s out-of-court investigative power through the study of the concept and characteristics。 Based on an analysis on a random sample of 600 civil law cases which concluded by the author’s organization,Z City H District Court in Guizhou Province,in the past five years.It pointed out that judges had initiated out-of-court investigation according to law or “ non-in accordance with the law ” is widespread,but under the existing regulatory framework,there are problems with insufficient investigations in family litigation,and it is difficult to effectively protect the rights and interests of disadvantaged groups such as minor children.Therefore,judges are necessary to be given the right to investigate out-of-court in family litigation.Larger discretion is of great practical significance and necessity.Finally,through revealing and reviewing the confusion in the operation of the judge’s out-of-court investigation,We should also provide certain regulatory measures to prevent the judges from abusing of authority.The second part is the basic theory of judges’ out-of-court investigative power in family litigation.This part seeks from the basic theories of civil litigation to establish the theoretical basis for the judge’s out-of-court investigative power in family litigation.The strong public welfare nature of family litigation requires judges to judge the case on the basis of objective truth as much as possible.Power probing doctrine,revision debate doctrine,and restricted sanction doctrine,respectively correspond to the high degree of truth discovery in family litigation,power investigation of public interest matters,and The requirements for sanctions and restrictions on matters involving other interests can guide us to better construct judges ’ out-of-court investigative powers in family litigation;family disputes are both personal and property in nature,and the matters involved often include both litigation and Non-litigation incident.This feature determines that family litigation is also comprehensive,and the theory of interlaced application of procedural legal principles can better coordinate the various requirements of family litigation procedures,better discover the truth and promote litigation.The third part is the judge’s power of out-of-court investigation in extraterritorial family proceedings.This part mainly conducts a comparative study on the legislative overview and operation of the judge ’ s out-of-court investigative power in family litigation procedures in countries or regions such as Germany,Japan and Chinese Taiwan in the civil law system,as well as the common law system.Through research,it is found that although countries have different judicial traditions,economic and cultural development levels,social and cultural backgrounds,historical traditions,and family ethics,the two major legal systems countries or regions have generally recognized the importance and particularity of family litigation,Even the common law countries or regions that have always emphasized adversarial system,the concept of family trials has gradually changed from a passive judge to an active "litigation manager",emphasizing the application of non-confrontational means,and maximizing the interests of children Principles,and have explored the establishment of an independent family trial system,and formulated an independent family procedure law.Regarding the evidence system,the judges are strengthening the power of evidence investigation,and corresponding supporting systems are set up based on theories such as the obligation of evidence cooperation,so as to reasonably regulate the judges’ out-of-court investigation activities.The subject of out-of-court investigations in family litigation can be either a dedicated family judge or entrusted to family investigators or other social organizations,presenting the characteristics of the socialization of out-of-court investigations of family disputes.Through the comparative study of typical representatives,we can deepen our understanding of the power of out-of-court investigation in family litigation,and find a way to explore the judge’s out-of-court investigation system in national litigation.The fourth part is the construction of judges’ out-of-court investigative power in family litigation.This part starts from the principle of judges ’ out-of-court investigative powers in family litigation,and points out that under the current background that our country does not have a special family procedure law,the principle of maximizing children’s interests,the principle of complementary,and the principle of participation should be adopted as judges.Guidelines for out-of-court investigation activities to properly carry out out-of-court investigation activities.In the specific system construction,it is proposed that the investigator should be independent of judges.At the same time,it is believed that the limits of the judge’s power to conduct out-of-court investigations should be restricted according to the nature of the matters involved and the types of facts to be investigated.The parties should be given the right to know the result and raise objections.In order to prevent the arbitrary operation of out-of-court investigation activities,the judge’s obligation to clarify evidence should be taken as a prerequisite for the judge to launch out-of-court investigations.Only after the judge fulfills the obligation of evidence interpretation,the parties do not accept the interpretation or submit additional evidence by themselves.After exhausting the means of proof,the judge can only activate the power of out-of-court investigations if there are still doubts about the supporting facts and cannot be sure.At the same time,it is very necessary to legislate for the obligation of evidence cooperation.Before conducting an out-of-court investigation,whether the source of evidence is obligated to cooperate with evidence based on legal provisions,and whether they have the right to withdraw and refuse to testify under certain circumstances,are all considerations of judges.Only when the source of evidence has the obligation to cooperate with the evidence,and does not be entitled to the right to withdraw and refuse to testify,the judge can do it. |
