The twenty-fifth chapter  The personnel litigation procedure

The first section   Overview of personnel proceedings

NA, The concept and characteristics of personnel proceedings

N(a) The concept of personnel proceedings and law origin

NThe personnel litigation procedure, also known as the family litigation process, refers to the applicable court personnel lawsuit procedure. It differs from other civil procedure lies in that it is a"Personnel matters", rather than a"Property"The procedure.

NSo-called"Personnel matters"In the civil litigation, in the context of natural person specifically, and marriage and family relationship related to specific events, such as marriage, paternity case, terminate the adoptive relationship events, it does not include the property relations in the field of marriage and family and other personal relationships.

 

NTwo. The legal characteristics of personnel proceedings

N(1) Defining the scope of cases. Application procedure of personnel litigation cases mainly is part of the identity relation cases. As in marriage, family events and event adoption event.

N(2) The exclusive jurisdiction. Because of the special nature of family disputes, many countries have established the family court independent, specialized in dealing with such cases. Personnel litigation cases by the family court exclusive jurisdiction has almost become a national jurisdiction practice.

 

N(3) The litigation of public welfare. The personnel litigation is the subject of part of the identity relation, it not only relates to the private interest relates more public welfare state and society.

N(4) Application of non contentious procedure law.

N(5) The concrete procedure is special.

NTwo, The personnel litigation cases categories

NThe personnel litigation cases categories should be based on identity relationship involving the relative law of most countries or regions according to, but not all identity relations as the object of personnel proceedings, but has chosen to be specified.

 

 

N1In Japan, the provisions of personnel litigation cases including marriage, children, adoption event event event;

N2Taiwan area of our country, the personnel litigation cases including marriage event, family events, interdicted event, declaration of death events;

N3In Germany, the personnel litigation cases including marriage and family events events, not including adoption event;

N4In France, the personnel litigation cases including marriage event, event, event and parent-child adoption paternity events;

N5In Australia, the personnel litigation cases including the divorce is the core of the marriage event.

 

N6The scope, our personnel litigation: our personnel litigation cases include marriage event, family events and adoption cases. The marriage events including a divorce, the marriage invalid, marriage cancellation suit; parent-child events include denying children born in wedlock suits, a paternity suit; the adoption of specific events including adoption invalid, terminate the adoptive relationship v..

 

N Three, Principles of procedure of personnel litigation

N(a) Authority of trial principle

NThe court in the personnel litigation trial, can take the initiative to investigate and collect evidence; can be considered not present the facts outside the range of the request of the parties involved in litigation; in fact the admission and Rights Agreement are not binding court; the judge from the proof on matters related to judge or court judgment; also can be according to the authority or suspend litigation preservation. In the appeal, the court of appeal can not limit the scope of the parties to appeal.

NTwo. Mandatory conciliation or mediation principle

NMandatory mediation, also known as pre mediation, refers to the personnel litigation cases in the majority of cases (such as divorce, terminate the adoptive relationship cases) must pass through mediation or used in formal decision before the court.

 

NThree. Don't open trial principle

NFour. A comprehensive solution principle

NObject and general civil litigation is the main property disputes between different objects, the personnel litigation is the identity relation dispute, in order to avoid identity between the long-term in a state of uncertainty, many countries of the personnel litigation related disputes, a comprehensive solution to the centralized trial principle, in order to prevent the identity relationship disputes and disputes between the identity related disputes to solve the contradiction are possible or disability. Therefore, the lawsuit filed suit, with additional, counterclaim were relaxed regulations, while expanding the effect of loss power effect, and give the judgment of potency, in order to fully solve the identity relationship.

The second section   Marriage event procedure

NA, Marriage nullitysuit

N(a) Invalid marriage and marriage nullitysuit

NThe invalid marriage refers to have concluded a form of marriage has legal invalid marriage condition (one), the marriage does not have legal effect. According to our country"The marriage law"The provisions of the specific circumstances, invalid marriage includes: (1) Bigamy; (2) A prohibition of marriage between relatives; (3) Marriage with medical illness that should not be married, has not been cured after marriage (4) Under the legal age.

NAccording to the regulations, the legislation of invalid marriage, must be approved by the court.

NThe marriage invalid must be filed"Marriage nullitysuit"We can obtain the consequences. 

 

NTwo. Marriage nullitysuit parties

NThe invalid marriage parties, China called the applicant, respondent, rather than the plaintiff, the defendant.

NOur country"The marriage law explain (a)"Article7The provisions:"Have the right basis"The marriage law"Article10The people's court rules orientation has to apply for marriage registration marriage declared invalid subject, including marriage the parties and interested parties."

 

 

NThree. The marriage invalid litigation of burden of proof

NThe distribution of burden of proof standard marriage invalid, on the whole is based on legal requirements allocation principle of distribution. That the plaintiff shall be specific reasons for marriage nullity shoulder the burden of proof of marriage; the defendant shall not"Cure"Reason or"Destroy"The subject bear the burden of proof.

NMarriage nullitysuit implement exofficio doctrine, the court only review the evidence provided by the parties, and shall provide evidence based on the survey on authority, even if the parties do not provide evidence or lack of evidence, still ask the judge authority investigation, the purpose is to obtain the objective and real cases, forming a complete heart syndrome. 

 

NFour. The marriage invalid litigation judgment and its effect

NThe invalid marriage cases usually have two kind of judgment

NOne is the claim of the plaintiff's marriage invalid reason is determined, the Court confirmed the nullity of marriage;

NTwo is the claim of the plaintiff's marriage invalid reason is determined does not exist, or the defence of marriage is invalid cure causes are determined, the court rejected the plaintiff's claim to make a decision.

NOur marriage nullitysuit practices, a trial so, make marriage nullitysuit referee once, it takes legal effect. Specific performance:

 

N(1) The res Judicata

NAccording to the general theory of effect of judgment, the above two kinds of decision is determined, the former produces res judicata of nullity of marriage, which produces a marriage valid res judicata, anyone is not allowed to specific parties marriage for the effectiveness of dispute.

NFrom the subjective scope, the marriage invalid judgments res judicata consists of the expansion to all social subject of party, has the potency.

NFrom the objective scope of res judicata, limited to the main body involved in the litigation claim or statement, occurrence range is res judicata and all the words before the end of the debate and the end of the facts and the statement and the corresponding.

 

N(2) Apply to the marriage registration office to inform

NOur country"The marriage law explain (a)"Article14The provisions:"The people's court according to the request of the parties concerned, announcing the marriage invalid or revocable marriage in accordance with the law, shall take over the marriage certificate and the effective judgment to the marriage registration authority."

NTwo, Marriage cancellation suit

N(a) Revocable marriage and marriage cancellation suit

N Our country"The marriage law"Article11The provisions:"In case of marriage, the coerced party may apply to the marriage registration office or the people's court for cancellation of the marriage. The intimidated party shall request of the marriage, the marriage registration date1Years. Illegal restriction of personal freedom of the parties request annulment of marriage, shall restore the personal freedom day1Years."

 

NTwo. Marriage lawsuit parties

NMarriage and the withdraw of the plaintiff can only is a marriage between stress the party, the party's close relatives or the grassroots organization can not be used as the plaintiff lawsuit. The defendant is the relationship of the other party, namely stress the plaintiff and married people.

NThree. The withdraw of the burden of proof in marriage

NThe general principle of distribution of burden of proof in principle still follow, namely allocation according to the legal essentials classification. In the lawsuit, the plaintiff shall be revoked on legal facts of Essentials--Stress, bear the burden of proof, bear the burden of proof is on the defendant to destroy marriage cancellation reason. Of course, despite the burden of proof distribution between the parties, but the court still has the obligation to exofficio or authority investigation.

 

NFour. The revocation decision marriage and its validity

NMarriage and the withdraw of the judge is two: the decision to withdraw to marriage or the decision to dismiss the claim. Because of China's judicial interpretation of the provisions of the marriage revocation proceedings shall apply the ordinary procedure and summary procedure, so the decision may be appealed, the final .

NA careful not to appeal the verdict and appellate decision constitute effective decision, will produce the corresponding effect:

N(1) Res Judicata

NThe two sentence is determined, the first generation of res judicata. The former produces res judicata marriage cancellation, which produces a marriage of res judicata. Two kinds of judgments have the potency. Anyone not to dispute.

N(2) Apply to the marriage registration office to inform

NThis effect can also be understood as generalized execution, but only the marriage cancellation decision. Specific content according to provisions of the marriage invalid decision.

 

NThree, Action for divorce

N(a) Divorce and divorce v.

NOn the basis of our"The marriage law"The provisions of the divorce, there are two ways: divorce and divorce proceedings. The divorce agreement, refers to both husband and wife are willing to divorce, by mutual consensus, signed the divorce agreement, to the marriage registration office to divorce, a way to obtain a divorce certificate. Divorce proceedings, refers to the couple's divorce (whether the divorce, division of property, such as child custody) unable to reach an agreement, a court, a way to request the court to order the divorce.

 

N(two) the divorce proceedings

NFiled for a divorce, marriage parties only spouse, third people can not divorce litigation.

NQuestion: limit the capacity of people or incompetent person can become a divorce the proper parties?

NThree. Divorce litigation limit

NAccording to our country"The marriage law"Provisions, in the two case, divorce litigation subject to certain restrictions: one is the spouse of an active serviceman asked for a divorce, the soldier's consent must be obtained, except for the military party is great fault; two is a woman during pregnancy, after childbirth1Year or after termination of pregnancy6Months, the husband may not apply for divorce. Divorce, or the people's court deems it necessary to accept the divorce request, this restriction does not apply to.

 

NFour. Judgment of divorce proceedings and its effect

N1, judgment of divorce: divorce is confirmed, will produce res judicata. Remove the marital relationship between the parties, the judgment not only binding on the parties, but also has the potency, everyone must respect the decision, not to a different proposition.

N2The judgment, not divorce: not divorce judgment, produces only temporary effect, not the full effect, and no res judicata.

The third section   Parentage affairs program

NA, Parentage affairs program overview

NThe parent-child relationship between parents and children, also known as, is a legal relationship is based on blood and produce. In the law, blood relations and reflects the natural consanguinity and prepared by blood relations, relations between parents and children because of the difference between different.

NThe practice of our country's legal parent-child relationship types include the children born in wedlock disregard, a paternity suit two types .

 

NTwo, Children born in wedlock disregard

N(a) Children born in wedlock deny lawsui meaning

NThe relationship of children affected by presumption of legitimacy. Presumption of legitimacy is only a presumption of law, is not in line with the objective reality, therefore, in a certain evidence the legal presumption can be rebutted, this will produce a legitimate son denied. In the best interests of maintaining stability of family relationship and minor children, countries do not allow arbitrary denial of legitimate children, must be subjected to rigorous procedure to deny, namely for the presumptively identified as children born in wedlock, non denied by the children born in wedlock suits, not deny the children born in wedlock.

 

 

N Two. Children born in wedlock the disregard of the parties

N 1, Plaintiff

NSeveral practices: it is only in marriage the husband for the plaintiff, such as japan;

NTwo children and presumed father has a right of appeal, such as switzerland;

NThree is the putative father, mother and children all can become the plaintiff, such as Germany, Italy;

NFour is the children's mother, mother's husband, her husband's heir under certain conditions, can make legitimate disregard, france.

NOur country : the legitimate disregard the plaintiff did not make provisions. In practice, the plaintiff is usually presumed to be the father.

 

N 2, Defendant

N(1) to husband for the plaintiff, the defendant for the children;

N(2The children) for the plaintiffs, defendants to husband; for the mother, husband and son for the defendant.

N(3) in our practice, the disregard of the legitimate children usually children.

NThree. The burden of proof and proof methods in disregard of the exofficio doctrine Still, the parties have the burden of proving certain.

NTwo methods of proof:Indirect evidence and direct evidence.

 

NThree, A paternity suit

N(a) Confirm the practice of legislative situation father sues and China

NThree kinds of methods : the presumption of law, such as during the marriage was born or conceived of the facts, the law estimated the child is the father of the man in marriage;

NThe two is determined by the father of voluntary claim;

NThree is the litigation confirmation, also known as compulsory claim. The so-called compulsory claim, is the illegitimate father (mother) for children born out of wedlock unwilling to claim, in certain conditions, the law, illegitimate child, the mother or other statutory agent to the court claim lawsuit, court decision forced father (mother) the illegitimate child claim.

 

NIn our country, there is no illegitimate child claim and legitimation system, because of our country's legislation of illegitimate children and children born in wedlock have equal status. But confirmation sub girls whose parents litigation, especially a paternity suit is objective existence. Practice simply require confirmation paternity case less, mostly in the survival father burden alimony and request the court to clarify the relationship between father and son.

NTwo. A paternity suit party

N1Plaintiff:, paternity suit is a foreign compulsory claim lawsuit, its essence is to determine the illegitimate children and their father parent-child relationship, therefore, the almost uniform provisions, children have the plaintiff qualification. In addition to the children, the children's mother or other paternity also may bring a lawsuit in the case of certain.

N2Defendant: usually, father, if the father's death, by his children or other close relatives inherited the defendant qualification.

 

NThree. In the action of confirmation and putative father

NThe exofficio principle, the parties are still necessary to prove. There are two kinds of specific proof method: indirect method and direct method to prove that.

 

 

The fourth section   The adoptive relationship event procedure

NA, The adoption procedure

NThe adoptive relationship is a kind of prepared by blood relationship, in law, the relations between parents and children and natural blood for blood relationship between the parents and children have the same rights and duties, but after all it is artificially set by law, therefore, it can be due to cancellation of adoption, invalidation, cancellation and stepfather (the mother) and students (father) mother divorce or other mutually dependent relations change and destroy. In order to maintain the family in good order, to prevent the adoption relationship in a state of uncertainty and damage the interests of the parties involved in the adoptive relationship, change the adoptive relationship usually need to through litigation.

NAdoption proceedings generally include: adoption invalid, the adoption of the withdraw of the termination of an adoptive relationship, v..

 

NTwo, The adoption of invalid

N(a) The concept of void adoption v.

NThe adoption of invalid, is due to the existence of specific adoption valid reasons to request confirmation of the adoptive relationship, litigation invalid related parties to the court.

NTwo. The adoption of invalid client

N1Plaintiff:, adoption, the adoptee, the adoptee is a minor, the people's procuratorate can also request cancellation of adoption.

NOur country should: with reference to judicial interpretation of marriage nullity proceedings for the adoptive relationship, the plaintiff to the expansion of the close relatives of parties and organizations at the grassroots level, to reflect the status relationship cases relating to public interest to national attention.

N2Defendant: the legislation of our country, also did not make provisions. But you can learn from China's judicial interpretation of the marriage law stipulates that the adoptive relationship, the application of a party concerned that adoption is invalid, the other party to the defendant; the interested party applies for both parties, the adoptive relationship as a joint defendant; adoption of one party dies, in order to survive as a defendant; both sides of death, no defendant.

 

NThree. Responsibility and judgment proof validity invalid of adoption

N1, The burden of proof

NIn the distribution of burden of proof, the adoption of invalid usually follow the elements classification standard, namely, the plaintiff shall on the concrete causes of invalid negative proof, the defendant to eliminate negative proof invalidity.

N2Effect of judgment

NThe adoption of invalid judgment has two kinds: one is the court affirmed judgment, the judgment is confirmed will produce res judicata, no matter who can not stand the adoptive relationship effectively. Effect of adoption invalid verdict with retroactive (but there are also some countries do not recognize the adoption of ineffective decision retroactivity)

NTwo is the negative judgment by the court, which rejected the plaintiff litigation request, the judgment of res judicata is generated, any person shall not claim the adoptive relationship is invalid, the court shall not be admitted to the same statement as the object of litigation.

 

NThree, Terminate the adoptive relationship v.

N(a) Remove the adoptive relationship v.

NRelease way:1The decision way, such as France, Romania;

N2Methods: such as Austria, to terminate the agreement;

N3At the same time, provided in the agreement and decision two way to release: such as Japan, Switzerland .

N4In our country: Way to release a double track system.

 

NTwo. Terminate the adoptive relationship lawsuit parties

N Terminate the adoptive relationship litigation parties because of the adoptee whether adult and different :

N1, The children have adult

NAdult children and parents can be sued for rescission, a party as the prosecution, the other for the defendant.

N2, The children are minors

NPlaintiff: any person; the defendant: adoptive parents.

NThree. The adoptive relationship termination decision action and its effect

NOne is the decision to terminate the adoptive relationship, referred to as the affirmative sentence; the judgment of res judicata, produce, the adoptive relationship between adoptive parents and adopted children is discharged, anyone can't re argument. To terminate the adoptive relationship decision system formed the release effect judgment, future oriented, non retroactivity. Sentence after the entry into force, any party may in fact cause adoption dissolution does not exist claim any damages or restitution of unjust enrichment claim.

 

NTwo is the decision to dismiss the claim, referred to as the negative judgment.

NThe ruling also produces the objective scope of res judicata, res judicata only facts trial before the end of word debate fact, no blocking effect for new trial of fact words debate in the end after the fact, that the parties can still according to this new fact brought to terminate the adoptive relationship action again.