论我国家事审判程序的建构

发布时间：2018-05-30 12:06

本文选题：家事 + 家事事件　；参考：《河南财经政法大学》2017年硕士论文

【摘要】：家庭是由婚姻、血缘、或收养关系所组成的社会生活的基本单位。家庭的成立是以婚姻、血缘和收养三种关系为基础而构成,在相同的屋檐下共同生活,彼此互动,是意识、情感交流与互助的整合体。家庭关系是指存在于家庭成员之间的、为法律所确认并赋予权利、义务内容的法律关系。家庭关系是构成家事事件的基础。家事是指家庭的事情。家事事件是指存在家庭关系的家庭成员之间产生的身份或者财产关系纠纷的事件。家事纠纷是指婚姻家庭领域因婚姻、亲子、收养、同居等涉及感情关系引起的身份关系或财产关系上的权利义务争议。家事纠纷与一般的民事纠纷有所不同,大多数民事纠纷都涉及财产纠纷,而家事纠纷则大多只涉及到个人的身份权等私权,而且家事纠纷的当事人之间一般以家庭关系为纽带而相互牵连,当事人之间会存在血缘关系或者婚姻关系。这些因素也使家事纠纷的解决在关注个人权利的同时具有了一些社会公共利益的性质,决定了家事纠纷的解决程序不同于一般的民事诉讼程序。我国现实实践中并未设立专门的家事审判程序,家事案件的审理程序基本上适用一般的民事案件审理程序。这种审理模式下就没有真正的考虑到家事案件本身具有的特殊性。我国没有设立统一的家事实体法,相关的规定分散见于《婚姻法》、《收养法》、《继承法》等法律中,家事事件的适用程序依照《民事诉讼法》及相关的司法解释,对家事事件进行统一分类,将家事事件有关法律从一般民事诉讼法和其他法律中摘录出来进行整合,适用于家事事件的独立程序值得探讨。在家事案件的适用程序上,应当考虑家事诉讼事件与一般民事诉讼事件的异同。在家事事件的审理上应当遵循职权主义原则、不公开审理原则、统合处理原则和调解原则。在家事审判程序的构建上,应当对家事案件进行专门分类,建立家事法庭,家事案件应当由专业的家事法官进行审理,设立专门的家事调查员对家事案件调查取证,在家事案件的审理中,应当明确实行强制调解前置程序,建立规范的法院调解程序,设立具有相应专门知识的家事调解员。在家事案件的审理过程中,应当注重家事案件中第三人权益的实质保障,构建检察机关以公诉人、法律监督者或者公益代表人的身份参与家事诉讼的模式。
[Abstract]:The family is the basic unit of social life consisting of marriage, blood, or adoption. The establishment of family is based on marriage, blood and adoption, living together under the same roof and interacting with each other. It is the integration of consciousness, emotional communication and mutual assistance. Family relationship refers to the legal relationship between family members which is recognized by law and endowed with rights and obligations. Family relations form the basis of family affairs. Family matters refer to family matters. Family events refer to the disputes of identity or property between family members who have family relations. Family disputes refer to the disputes of rights and obligations in the field of marriage, parenthood, adoption, cohabitation and so on, which are related to the relationship of identity or property in the field of marriage and family. Family disputes are different from ordinary civil disputes. Most civil disputes involve property disputes, while family disputes are mostly related to private rights such as personal identity rights. And the parties to a family dispute are usually related to each other by family relationship, and there will be blood relationship or marriage relationship between the parties. These factors also make the settlement of family disputes have the nature of social public interest while paying close attention to individual rights, which determines that the procedure of resolving family disputes is different from the ordinary civil procedure. In our country, there is no special family trial procedure in practice, and the trial procedure of family case is basically applicable to the general civil case trial procedure. This trial mode does not really take into account the particularity of the family case itself. There is no unified substantive law on family matters in our country. The relevant provisions are scattered in the Marriage Law, the Adoption Law, the inheritance Law, and other laws. The procedure for the application of family matters is in accordance with the Civil procedure Law and the relevant judicial interpretations. It is worth discussing the independent procedure which is applicable to the family affairs, such as the unified classification of the family affairs and the integration of the relevant laws of the family affairs from the general civil procedure law and other laws. In the application procedure of family case, we should consider the similarities and differences between family action and general civil action. In the trial of family affairs, we should abide by the principle of authority, the principle of closed trial, the principle of integrated handling and the principle of mediation. In the construction of family trial procedure, family cases should be specially classified, family courts should be established, family cases should be heard by professional family judges, and special family investigators should be set up to investigate and obtain evidence from family cases. In the trial of family cases, compulsory mediation procedures should be clearly implemented, standardized court mediation procedures should be established, and family mediators with corresponding expertise should be set up. In the trial of family cases, we should pay attention to the substantive protection of the rights and interests of the third party in the family cases, and construct a model for procuratorial organs to participate in family litigation as public prosecutors, legal supervisors or public interest representatives.
【学位授予单位】：河南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1;D923.9

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