家事调查官制度研究

发布时间：2018-10-08 07:59

【摘要】：与一般的民事案件相比,建立在婚姻、血缘关系基础上的家事案件的当事人之间通常具有复杂的感情因素,法院作出裁判后双方当事人之间通常还需要进行密切的往来,这就需要法院采取多种方式探知家事纠纷背后的深层其原因。在此基础之上,以妥适的方式依法对当事人之间的实体权利义务关系做出合情合理的裁决。与以往法律关系较为单一的家事案件相比,随着经济社会的发展,家事案件不仅涉及到当事人之间身份关系的纠纷,而且其利益纠纷也趋于多元化和复杂化,有时还涉及到其他主体的利益。面对复杂多变的家事案件,囿于法官的专业限制以及中立性的要求,法官没有时间和精力去探究家事案件的深层次原因。法官虽然能够依法对家事案件作出相应的裁判,但是这并不意味着家事纠纷得到了圆满解决。为了家事纠纷的圆满解决,这就需要借助具有社工、心理、教育等专业知识人员在家事案件审理前对当事人或关系人进行事实调查,在家事裁判结束后采取必要的措施促使负有履行义务一方积极履行义务。近年来,面对家事纠纷矛盾突发的情况,以及一般民事裁判的局限性,我国开始逐步推行家事审判改革。部分地区的试点法院开始启用家事调查官1协助法官进行事实调查,进行案后回访等工作,并取得了良好的社会效果。但是有关家事调查官制度的法理基础、功能以及价值追求,我们不得而知。同时,由于我国立法并没有有关家事调查官制度的规范,在这种情况下对国外以及我国台湾地区家事调查官制度的研究就很有必要。家事调查官制度是指特定人员根据法官的命令,在必要的情况下以其社工、教育、心理等专业知识就家事案件中的特定事项以实地探访的方式展开事实调查,在事实调查的基础上提出调查报告,以协助法官厘清案件事实;在家事案件执行阶段应以其专业知识对负有履行义务的一方行履行劝告之责,以圆满解决家事纠纷的制度。考虑到我国在家事裁判中也存在家事案件事实难以查明以及家事案件"执行难"的现实问题。本文尝试通过对日本、我国台湾地区家事调查官制度进行分析,同时借鉴诸如韩国、澳大利亚、英国、德国、法国等国家的立法经验,以厘清诸如家事调查官制度的含义、法理基础、功能、价值追求等基本问题。在此基础之上,剖析我国家事裁判制度存在的问题,分析我国家事调查官制度构建的必要性,结合国外以及我国台湾地区的立法经验,并以我国正在推行的家事审判改革和家事调查官试点工作为参照,梳理我国家事调查官制度构建的可行性。最后,对我国家事调查官制度的构建提供一些可供参考的建议。
[Abstract]:Compared with ordinary civil cases, the parties involved in family cases based on marriage and blood relations usually have complex emotional factors, and after the court makes a decision, they usually need to have close exchanges between the parties. This requires the court to take a variety of ways to find out the underlying causes of family disputes. On the basis of this, the relationship between the parties' rights and obligations is reasonably and reasonably adjudicated in a proper manner. Compared with the family cases with single legal relationship in the past, with the development of the economy and society, the family cases not only involve the disputes of the identity relations between the parties, but also tend to diversify and complicate the interests disputes. Sometimes it also involves the interests of other subjects. Faced with complex and changeable family cases, due to the professional limitations of judges and neutral requirements, judges do not have the time and energy to explore the deep-seated causes of family cases. Although the judge can judge the family case according to law, this does not mean that the family dispute has been resolved satisfactorily. In order to resolve the family disputes satisfactorily, it is necessary to investigate the facts of the parties or related persons before the family cases are tried with the help of professionals with social work, psychology, education, etc. Take necessary measures after the conclusion of the family judgment to urge the party who has fulfilled the obligation to do so actively. In recent years, in the face of the sudden conflicts of family disputes, as well as the limitations of general civil adjudication, China began to gradually implement the family trial reform. The pilot courts in some areas began to use the Family Investigator 1 to assist the judges in the investigation of facts and to return to the case after the case, and achieved good social results. However, we do not know the legal basis, function and value pursuit of the family ombudsman system. At the same time, because there is no norm about the system of family inspector in our country's legislation, it is necessary to study the system of household inspector in foreign countries and Taiwan area in this situation. The family ombudsman system means that a particular person, on the order of a judge, conducts, if necessary, a fact-finding investigation in the form of a field visit on a particular matter in a family case with his professional knowledge of social work, education, psychology, etc. In order to assist the judge in clarifying the facts of the case, the investigation report should be put forward on the basis of the investigation, and the professional knowledge of the family case should be used to perform the duty of advice to the party who is responsible for the performance of the obligation, so as to satisfactorily resolve the family dispute system during the execution stage of the family case. In view of the fact that the family cases are difficult to find out and the family cases are difficult to carry out in our country. This paper attempts to analyze the system of family surveyors in Japan and Taiwan, and at the same time draw lessons from the legislative experience of countries such as Korea, Australia, Britain, Germany, France, and so on, in order to clarify the meaning of such a system. Legal basis, function, value pursuit and other basic issues. On this basis, this paper analyzes the problems existing in the system of family adjudication in our country, analyzes the necessity of the establishment of the system of family surveyors in our country, and combines the legislative experience of foreign countries and the Taiwan region of our country. Taking the family trial reform and the pilot work of the family investigator as the reference, the feasibility of the construction of the family investigation officer system in our country is combed. Finally, some suggestions are provided for the construction of the system of family surveyors in our country.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

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