家事诉讼程序若干问题研究
发布时间：2018-09-08 20:36
【摘要】： 家事诉讼程序作为解决家事纠纷的程序,属于特殊的民事诉讼程序。本文采用比较的方法、历史的方法和实证的方法,在分别分析了家事诉讼程序的基本问题、我国关于家事诉讼程序的基本立法现状、构建的必要性和可行性基础上,着重对如何构建我国的家事诉讼程序进行了初步的探索,并针对构建中的具体问题进行了深入分析,以期为构建我国专门的家事诉讼程序献一份力。 本文正文共分为四部分,主要内容是: 第一章:家事诉讼程序概述。基于我国没有关于家事诉讼程序专门的立法规定,家事诉讼程序仅仅是一个学理的概念,而国外虽然有相关立法,但对家事诉讼程序名称、适用范围等都不一样。故,本章首先从分析国外关于家事诉讼程序的调整对象入手,进而归纳了本文论述的“家事诉讼程序”的调整对象及其外延。其次,在分析我国学理上关于家事诉讼程序概念的基础上,总结了本文所论述的家事诉讼程序内涵。最后,指出家事诉讼程序在我国民事诉讼程序中应有的地位及性质。 第二章:我国家事诉讼程序之立法。虽然我国没有专门的家事诉讼程序,但是相关立法中也有关于家事诉讼程序的特殊规定。本章首先介绍了我国《民事诉讼法》、《婚姻法》及相关司法解释中对家事诉讼程序的专门规定。其次分析了立法现状中存在的问题,比如,条文少、规定散、不系统、缺乏操作性,难以实现家事诉讼程序的价值等。最后分析造成这种现状的原因,主要从法律文化的影响、职权主义诉讼模式的影响、理论研究不足等三个方面来分析。 第三章:构建我国家事诉讼程序之必要。首先,分析我国目前有必要建立家事诉讼程序,主要是因为家事纠纷的特殊性、家事诉讼程序的专门诉讼价值及民诉司法改革实践的需要;其次,构建家事诉讼程序具有可行性。主要表现在具有合理的法理基础,有相关的立法、司法实践经验及国外成熟的立法经验。 第四章:关于我国家事诉讼程序的构建。首先,在构建专门家事诉讼程序之前,必须要考虑家事诉讼程序的性质、构建目的及立法例。其次,家事诉讼程序的基本原则。主要包括职权主义原则及非公开审判原则。对于职权主义,在介绍了概念及立法有关规定的基础上,认为职权主义只有在立法明确规定的情况下才能行使,且需要通过命令的方式要求当事人或者检察机关来行使;在法律没有明确规定的情况下,法官不能直接行使职权,而应该通过释明权等间接行使;对于非公开审判原则,在强调适用范围应该扩大的同时,认为应该将非公开审判原则的范围不仅仅局限于审判程序,还应该包括与案件有关的文书资料。再次,介绍了家事诉讼程序的基本制度规定。主要从四个方面,分三个层次来介绍。在介绍国内外立法的基础上,分别分析了调解制度、当事人制度、检察机关参与制度及集中化审理制度,并分别提出相关制度在具体家事纠纷类型中的体现,从而形成了对构建我国家事诉讼程序基本轮廓的论证和分析。
[Abstract]:As a procedure for solving family disputes, family lawsuit procedure belongs to special civil procedure. This paper adopts comparative method, historical method and empirical method to analyze the basic problems of family lawsuit procedure, the basic legislative status quo of family lawsuit procedure in China, the necessity and feasibility of its construction. This paper makes a preliminary exploration on how to construct our country's family lawsuit procedure, and makes a thorough analysis on the concrete problems in the construction, so as to contribute to the construction of our country's special family lawsuit procedure.
The text is divided into four parts, the main contents are:
Chapter One: Summary of Family Procedure. Since there is no special legislation on family procedure in China, family procedure is only a theoretical concept, while foreign countries have relevant legislation, but the name and scope of application of family procedure are different. Secondly, on the basis of analyzing the concept of family litigation procedure in our country's theory, the connotation of family litigation procedure discussed in this paper is summarized. Finally, the proper place of family litigation procedure in our country's civil procedure is pointed out. Position and nature.
Chapter 2: Legislation of family lawsuit procedure in China. Although there is no special family lawsuit procedure in China, there are some special provisions about family lawsuit procedure in relevant legislation. This chapter first introduces the special provisions of family lawsuit procedure in Civil Procedure Law, Marriage Law and relevant judicial interpretations. For example, there are few provisions, scattered provisions, unsystematic, lack of operability, difficult to realize the value of family proceedings and so on.
Chapter Three: The necessity of constructing the family lawsuit procedure in our country. Firstly, it is necessary to establish the family lawsuit procedure in our country at present, mainly because of the particularity of family disputes, the special lawsuit value of family lawsuit procedure and the need of civil lawsuit judicial reform practice. Secondly, it is feasible to construct the family lawsuit procedure. The legal basis is related to legislation, experience in judicial practice and mature legislative experience abroad.
Chapter Four: On the construction of family lawsuit procedure in our country. Firstly, we must consider the nature of family lawsuit procedure, the purpose of constructing family lawsuit procedure and the legislative example before constructing family lawsuit procedure. On the basis of the relevant provisions of the legislation, the author holds that the doctrine of authority can only be exercised under the circumstances clearly stipulated in the legislation and requires the parties or procuratorial organs to execute it by order; in the absence of clear provisions in the law, judges can not directly exercise their powers, but should be executed indirectly through the power of interpretation; and in the absence of clear provisions in the law, judges can not execute their powers While emphasizing that the scope of application of the principle of public trial should be expanded, the author holds that the scope of the principle of private trial should not only be limited to the trial procedure, but also include documents and materials related to the case. On the basis of internal and external legislation, this paper analyzes the mediation system, the party system, the procuratorial organ participation system and the centralized trial system respectively, and puts forward the embodiment of relevant systems in the specific types of family disputes, thus forming an argument and Analysis on the construction of the basic outline of China's family proceedings.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.1
本文编号：2231627
[Abstract]:As a procedure for solving family disputes, family lawsuit procedure belongs to special civil procedure. This paper adopts comparative method, historical method and empirical method to analyze the basic problems of family lawsuit procedure, the basic legislative status quo of family lawsuit procedure in China, the necessity and feasibility of its construction. This paper makes a preliminary exploration on how to construct our country's family lawsuit procedure, and makes a thorough analysis on the concrete problems in the construction, so as to contribute to the construction of our country's special family lawsuit procedure.
The text is divided into four parts, the main contents are:
Chapter One: Summary of Family Procedure. Since there is no special legislation on family procedure in China, family procedure is only a theoretical concept, while foreign countries have relevant legislation, but the name and scope of application of family procedure are different. Secondly, on the basis of analyzing the concept of family litigation procedure in our country's theory, the connotation of family litigation procedure discussed in this paper is summarized. Finally, the proper place of family litigation procedure in our country's civil procedure is pointed out. Position and nature.
Chapter 2: Legislation of family lawsuit procedure in China. Although there is no special family lawsuit procedure in China, there are some special provisions about family lawsuit procedure in relevant legislation. This chapter first introduces the special provisions of family lawsuit procedure in Civil Procedure Law, Marriage Law and relevant judicial interpretations. For example, there are few provisions, scattered provisions, unsystematic, lack of operability, difficult to realize the value of family proceedings and so on.
Chapter Three: The necessity of constructing the family lawsuit procedure in our country. Firstly, it is necessary to establish the family lawsuit procedure in our country at present, mainly because of the particularity of family disputes, the special lawsuit value of family lawsuit procedure and the need of civil lawsuit judicial reform practice. Secondly, it is feasible to construct the family lawsuit procedure. The legal basis is related to legislation, experience in judicial practice and mature legislative experience abroad.
Chapter Four: On the construction of family lawsuit procedure in our country. Firstly, we must consider the nature of family lawsuit procedure, the purpose of constructing family lawsuit procedure and the legislative example before constructing family lawsuit procedure. On the basis of the relevant provisions of the legislation, the author holds that the doctrine of authority can only be exercised under the circumstances clearly stipulated in the legislation and requires the parties or procuratorial organs to execute it by order; in the absence of clear provisions in the law, judges can not directly exercise their powers, but should be executed indirectly through the power of interpretation; and in the absence of clear provisions in the law, judges can not execute their powers While emphasizing that the scope of application of the principle of public trial should be expanded, the author holds that the scope of the principle of private trial should not only be limited to the trial procedure, but also include documents and materials related to the case. On the basis of internal and external legislation, this paper analyzes the mediation system, the party system, the procuratorial organ participation system and the centralized trial system respectively, and puts forward the embodiment of relevant systems in the specific types of family disputes, thus forming an argument and Analysis on the construction of the basic outline of China's family proceedings.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.1
【引证文献】
相关硕士学位论文 前1条
1 涂荣;我国家事诉讼制度之构建[D];海南大学;2012年
，本文编号：2231627
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