人事诉讼程序研究

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归属学者:

郭美松

归属院系:

法学院

作者:

郭美松

导师:

田平安

导师单位:

西南政法大学法学院

学位:

博士

语种:

中文

摘要:

人事诉讼程序制度的研究是民事诉讼程序理论领域的重要内容之一。人事诉讼程序是以维护身份关系秩序为目的,体现国家公权对婚姻、亲子关系进行适度干预的一种特殊诉讼程序模式。该程序是以身份关系上的争讼作为调整对象,其处理结果不仅涉及个人私益,而且与他人存在密切的利害关系,与社会公益更是一脉相承,故需要广泛施行职权探知主义。正是基于人事诉讼案件的个性特征,两大法系诸多国家的民事诉讼审判体系中都设置了异于普通诉讼程序的人事诉讼程序,以满足各类人事诉讼案件对程序的特殊需求。我国司法实践中,人事诉讼案件审理基本上是采用审理财产关系案件的普通诉讼程序,而普通诉讼程序公开、对抗性强等程序法理显然不利于身份关系争讼的解决,不利于当事人隐私的保护,同时也无法体现国家对人事诉讼案件的特别“关爱”。因此,铸就人事诉讼程序之必要性便应然而生。 一直以来,我国民事诉讼法学界对人事诉讼程序理论的研究不够深入,虽然一些学者从不同的视点对人事诉讼程序制度的一些分枝问题进行了探讨,提出了程序相称原理、多样化原理等,这固然值得称道,但是,迄今为止,尚无学者从宏观的角度对人事诉讼程序制度进行全方位的研究,特别是对人事诉讼程序的设置理念、程序法理·法则、当事人适格理论的缓和、检察官的参与、既判力的扩张及其根据以及第三人程序保障等“瓶颈”问题未进行深入的研究,尤其是对外国颇为完善的人事诉讼理论体系和制度缺乏详实的介绍、评析。学界尽管认识到民事审判程序的设计、配置应与案件类型化、多元化相适应,实现民事程序的专门化设计,遗憾的是,同行们对人事诉讼案件的属性特征、程序法上的要求以及与其它案件、程序的关系均未加以系统研究。人事诉讼程序的设置蕴含着深厚的程序法理,它既与各国社会现状、法律文化、立法政策等情系交融,又与民事诉讼审判程序的结构体系、

学科:

诉讼法学

提交日期

2018-01-11

引用参考

郭美松. 人事诉讼程序研究[D]. 西南政法大学,2005.

全文附件授权许可

知识共享许可协议-署名

  • dc.title
  • 人事诉讼程序研究
  • dc.contributor.schoolno
  • b200200242
  • dc.contributor.author
  • 郭美松
  • dc.contributor.degree
  • 博士
  • dc.contributor.degreeConferringInstitution
  • 西南政法大学
  • dc.identifier.year
  • 2005
  • dc.contributor.advisor
  • 田平安
  • dc.contributor.advisorAffiliation
  • 西南政法大学法学院
  • dc.language.iso
  • 中文
  • dc.description.abstract
  • 人事诉讼程序制度的研究是民事诉讼程序理论领域的重要内容之一。人事诉讼程序是以维护身份关系秩序为目的,体现国家公权对婚姻、亲子关系进行适度干预的一种特殊诉讼程序模式。该程序是以身份关系上的争讼作为调整对象,其处理结果不仅涉及个人私益,而且与他人存在密切的利害关系,与社会公益更是一脉相承,故需要广泛施行职权探知主义。正是基于人事诉讼案件的个性特征,两大法系诸多国家的民事诉讼审判体系中都设置了异于普通诉讼程序的人事诉讼程序,以满足各类人事诉讼案件对程序的特殊需求。我国司法实践中,人事诉讼案件审理基本上是采用审理财产关系案件的普通诉讼程序,而普通诉讼程序公开、对抗性强等程序法理显然不利于身份关系争讼的解决,不利于当事人隐私的保护,同时也无法体现国家对人事诉讼案件的特别“关爱”。因此,铸就人事诉讼程序之必要性便应然而生。 一直以来,我国民事诉讼法学界对人事诉讼程序理论的研究不够深入,虽然一些学者从不同的视点对人事诉讼程序制度的一些分枝问题进行了探讨,提出了程序相称原理、多样化原理等,这固然值得称道,但是,迄今为止,尚无学者从宏观的角度对人事诉讼程序制度进行全方位的研究,特别是对人事诉讼程序的设置理念、程序法理·法则、当事人适格理论的缓和、检察官的参与、既判力的扩张及其根据以及第三人程序保障等“瓶颈”问题未进行深入的研究,尤其是对外国颇为完善的人事诉讼理论体系和制度缺乏详实的介绍、评析。学界尽管认识到民事审判程序的设计、配置应与案件类型化、多元化相适应,实现民事程序的专门化设计,遗憾的是,同行们对人事诉讼案件的属性特征、程序法上的要求以及与其它案件、程序的关系均未加以系统研究。人事诉讼程序的设置蕴含着深厚的程序法理,它既与各国社会现状、法律文化、立法政策等情系交融,又与民事诉讼审判程序的结构体系、
  • dc.description.abstract
  • Research on the personnel contentious procedure system is one of the important parts in the theoretical field of civil litigation proceedings. Personnel contentious procedure, designed for safeguarding the order of relation of paternity, is a special proceeding mode which reflects proper intervention from the public right of state towards the marriage, parentage. This procedure takes the lawsuit of relation of paternity as adjustment audience. The processing results not only concern personal interests, but also have close relationship with other people and come down in one continuous line with public welfare. Therefore, it needs wide implementation of authority detectionism. Precisely based upon the characteristics of personnel lawsuit cases, civil procedure and adjudication system of every country has set up a personnel lawsuit proceeding which is different from the common lawsuit procedure, in order to meet some special requirement of various personnel lawsuits. In the judicial practice in china, adjudication of personnel lawsuit basically adopts the common procedure which is applied to property relation cases. But the procedural principles of law in the common process such as openness, strong antagonism are obviously not helpful for the settlement of relation of paternity disputes, are not conducive to the protection of litigant's privacy. In the mean time, the special "attention" that one country has rendered towards personnel lawsuit can not be shown. Therefore, the necessity of establishing personnel lawsuit procedure emerges.Since long time ago, the research on personnel lawsuit procedure is not profound enough in the civil procedural act circles in China. Although it is praiseworthy that some scholars have made discussion about some dispute issues of personnel lawsuit procedure system from different perspective, put forward procedural principle of proportionality and diversification theory, yet up to now none of the scholars have comprehensively studied personnel lawsuit procedure system in a macroscopical way. There still lack some insight research in terms of the "bottleneck" issues such as procedural roles and principles in the personnel proceedings, the alleviation of litigant's proper theory, intervention of prosecutors, validity and basis of judgment and the third party procedure guarantee. There are not enough detailed introduction and analysis, especially about the system of personnel lawsuit theory which is quite sound and improving in foreign countries. Though academic circles realize that the design and configuration of civil judging procedure should be adapted to the type and diversification of cases so as to fulfill the special design of civil procedure, it is a pity that those scholars have not systematically researched on the features of personnel lawsuit cases, requirement of procedural law and its relations with other cases and procedures. The setup of personnel lawsuit procedure contains insightful procedural laws. It is not only incorporated with social status quo of each country, law culture, and legislative policies, but also has too many difficult problems to deal with structural system, lawsuit mode, contentious and non-contentious principles of law etc. The paper adopts the method of comparative research. By means of analysis of foreign personnel lawsuit procedure and theory, it makes a modest attempt on the setup of personnel suitcase procedure, which is conducive to the legislation and practice.Based upon the design of theory basis and data collection of comparative law, this paper extends relatively systematic research on personnel lawsuit procedure. By attempting comparative research on the personnel proceedings in the two law systems, the author conducted different perspective from basic theory to concrete practice, from legislation to judicial practice, and its status, function in the overall civil lawsuit system. Based on this and combined with our own national conditions, objective of this research is to propose initial assumption of personnel lawsuit procedure with Chinese characteristics. Meanwhile, it is intended to arouse academic circles to render more attention to the personnel lawsuit procedure which is almost a barren field, and to put more efforts to study the personnel procedure system theory. It is hoped that through the reformation "express" of civil judicature system, the personnel lawsuit procedure system will be improved and perfected as soon as possible.Except for the introduction part, the whole paper contains 6 chapters, about 160 thousand words. As follows are the main contents.Summary of the personnel lawsuit proceduresResearch of every subject has its origin of conceptual analysis on the research audience. Research on both the conception and the question itself are the same, because they are of equally important theory value. Still following the traditional research techniques, starting with the conception of personnel lawsuit, this paper analyzes its basic concept, makes comparative analysis between itself and its related concepts (such as domestic proceedings). The appellation of personnel lawsuit is not at all the general concept of countries of continental genealogy of law. It is only applied by the some countries such as Germany and Japan. UK, U.S and France have not used this appellation. They generally call it domestic proceedings. Personnel proceedings take the human relation of paternity as its object of action. They don't include cases in terms of identity ability. They are not falling into the same conception with domestic proceedings. The extension and connotation of the domestic proceedings called by UK, U.S and France which is fact-oriented, and the personnel or domestic proceedings called by the countries of continental genealogy of law which is standard-oriented are different in that the scope of the former is far larger than the latter. The former one includes not only cases of relation of paternity such as marriage and parentage, but also such cases as succession, family violence, juvenile delinquency. There is no such seat as personnel lawsuit in the civil suitcase law in china. It is a pure theoretical concept, rather than a legal concept. Compared with the common lawsuit procedures, personnel proceedings have two distinct personalized features, for example, the specialty suited to the case coverage, the intense public welfare of object of action, diversification of procedural participants, and introduction of non-contentious procedural law. This chapter also makes comparative research between personnel proceeding and special procedure, non-contentious procedures. Its results will have direct impact on the future legislation system of personnel proceedings in china, so it is of huge realistic significance. The conclusion of comparative research is that personnel proceedings belong to special procedures, but they are different from the special procedure of common sense. After comparative analysis, the author thinks that personnel proceedings are different from the traditional lawsuit procedure and non-contentious procedures. It breaks the special civil lawsuit judging proceedings in which the intercrossed application of lawsuit principles and non-contentious law is formed based upon the absolute separation of traditional lawsuit proceedings and non-contentious proceedings. The article also touches upon the adjustment audience features, types and coverage in the personnel proceedings, pointing out that personnel procedure are not including all the cases concerning the relation of paternity and that only such cases as marriage, parentage, adoptive relations can be fell into the coverage of personnel proceedings. The current special proceedings have already undertaken the cases concerning identity ability which are not suitable to be served as adjustment audience of personnel lawsuit.The basic theory of personnel proceedingsThis part makes more comprehensive discussion about the basic theory of personnel proceedings, so as to provide some theoretical evidence and guidance for the establishment of personnel proceedings. The author focuses on proving the following viewpoints: From the perspective of procedural value, personnel proceedings are to discover the necessity of substantive truth, defend social public welfare and realize the coordination and integration offairness and efficiency. From the perspective of dispute modes-----proceduralsymmetry theory, the establishment of personnel proceedings is the inevitable outcome of procedural symmetry theory and diversification theory. From the perspective of ensuring the litigant to approach the opportunity of justice, implementation of special rule in the personnel proceedings provides a protective screen for the fulfillment of procedural justice, also cultivates sound environment for the entity justice. From the perspective of procedural intercrossing theory, the border of contentious and non-contentious proceeding in the personnel proceedings is far from entirely different. These two are in a state of being closely mingled.The legal principle confirmed by lawsuit procedure of personnel, an organic component of its basic theory, is also an important part this thesis refers to. Only if we hold clear understanding of its theoretical theory, we can see to that our design and structure for lawsuit procedure of personnel are reasonable, thus this chapter aims to analyze the theoretical basis for lawsuit procedure of personnel. Lawsuit procedure of personnel's existence in many countries' code of laws can be attributed to its own unique value. No matter whether the aim of civil procedure is based on the protection of private right or dispute solution, the civil procedure system contains in the specific operation process the public benefit beyond the private benefit. The maintenance of the law turns out to be "public welfare" through the protection of private right. The maintenance of the order of law and society is the symbol of procedure's public benefit. Lawsuit procedure of personnel adjusts the personal relation contention while personal relation relates to social relation, thus the result of solution can not only normalize the legal relation or state of the person concerned, but also influence the stability of society. Therefore, lawsuit procedure of personnel claims more public benefits than the general civil procedure. The principle of debate is suppressed in lawsuit procedure of personnel while the noncontentious legal basis, such as authority investigation, is commonly applied. The justice could investigate and collect proof if necessary, and it is conducive to the discovery of substantial true if the unproposed facts and proof are considered. Along with the renaissance of the civil judicial reform, the adversary system centered on the person concerned has come into shape in China. If we continue to apply the common civil procedure to judge civil procedure cases, we are more inclined to make "wrong" judgment and get opposite to the "EC+DC sum minimization" theory proposed by Mr. Baseler therefore, setting lawsuit procedure of personnel theory separately can be conducive to the realization of the concept of economical procedure. The writer thinks the formation of lawsuit procedure of personnel system is not based on any country's legislators' casual behavior, but originated from the objective demand of the social reality. The foundation of lawsuit procedure of personnel is based on profound theoretical and practical basis. Firstly, procedure symmetric principle demands to set respective procedure process according to the classification of the cases; Secondly, procedure verification principle demands legislators to set various systems and solution processes based on the verification of the modern society's disputes; Thirdly, we can apply both contentious and noncontentious legal principles in some cases' procedure of trial according to the nature of the cases.Special rules of lawsuit procedure of personnel. This part points out the special rules of lawsuit procedure of personnel compared with common procedure rules. The writer develops the statement with the following rules: 1. Adjusting principle of preposing. China has long pay attention to the application of adjustment system in the common civil cases and marital cases. Japan and America also pay much attention to the application of adjustment in the family procedure, and setting in the family court specific conciliation agencies, which is composed of family justice and conciliators with professional knowledge in sociology, medicine, psychology. The adjustment of preposing program in lawsuit procedure of personnel can be conducive to the protection of people's privacy, and give full play to the conciliators' suggestions. Because our current adjustment system is different from that of other countries, we must carry out reforms in the foundation of the specific systems, such as reclassification of the justice authority, family justice hosting pre-trial adjustment, changing long-standing identity concurrence of conciliators, to make adjustment system function specially in the lawsuit procedure of personnel. 2. Principle of official investigation. As Mr. Jiang Wei said, official principle is obviously better than principle of a party as to the discovery of the truth. In lawsuit procedure of personnel, official principle lies in investigation of authority proof, consideration of the unproposed facts, order of the party's presence, and adoption of comprehensive investigation rather than partial investigation. Contentious principle and right of disposition principle, though as the core of principle of a party's civil procedure, is still difficult to meet the demand of substantial true. Thus most scholars in many countries believe that contentious principle (broad sense) should be suppressed or even eliminated while they have not reached a common ground in the proof of it. Some scholars think that its proof should be lawsuit of personnel's function against all the world while others propose the undisposition. Some stipulation about indiligentia act in the civil procedure act can not be applied in lawsuit procedure of personnel, and the appeal for acknowledgement, abandonment and conciliation will be limited to some degree. 3. Principle of sitting in camera. Basing on the protection of privacy and people under age, many countries of the two legal chains have overwhelmingly supported the principle of sitting in camera. Both court hearing and estreat should not be made public, or the principle of sitting in camera will be formized, for the terminal aim of lawsuit procedure of personnel lies in finding the best solution to each specific case to normalize the new legal relations and state for two parties rather than claiming to the world what is law and what is justice. It is necessary to bring in procuratorial participation system as an essential complement to keep sitting in camera from secret judgment. 4. Principle of procedure centralism. The application of centralism in lawsuit procedure of personnel is conducive to realization of economical procedure and thorough solution to lawsuit procedure of personnel, and can avoid contradiction between different judgments from different courts; still it can keep personal relation stable. Therefore, we should relax the stipulation of joinder of actions, variation of claims, addition of claim, and recrimination of claim to realize principle of procedure centralism. Because lawsuit procedure of personnel mostly involves personal emotion, we should respect the party's attitude. In addition, it is necessary to expand the scope of competent litigant for the unsubstitution of personal relations. It can clear up misunderstanding and regain emotion through two parties' direct conversation to realize "psychological" treatment proposed by Mr. Baseler. 5. Prohibiting double procedure. The prohibition of double procedure aims to solve a marital dispute within one procedure, which can not only reduce the party's occasios, maintain relations of marriage, family and society, but also keep the courts from making contradicted judgments because of different litigants, which is also the embodiment of neb is in idem.In this part, the author will mainly expound on the expansion and procedural safeguard of unchangeableness of judgment in personnel litigation. If the uniformity of personal relation is to be realized, it is necessary that the validity of judgment should reach the third party besides the litigant concerned. This is an exception in the subjective scope of unchangeableness of judgment, which is termed as the expansion of unchangeableness of judgment by Chinese scholars and as effects against all the world by their Japanese counterparts. The legal foundation for this expansion lies in the restriction on principle of debate, the application of official principle, and the ratification of procurator's participation in personnel litigation, etc. The adoption of these measures enables the judge to make sentence that conforms to the truth, thus providing specific safeguard of procedure for the legitimization of the expansion of effects? of judgment. In view of the quality of the judges and the special status of the procuratorate, however, the blind expansion of the effects of judgment would go against the protection of legitimate rights of the third party who is subject to the binding force of judgment, and would consequently violate the basic function of litigation law—to safeguard the realization of the entity's rights. Keeping this consensus in mind, law professionals from different nations all attach considerable importance on the study of guaranteeing of the third party proceedings right. German scholars actively try to find theoretical foundation from "the right of claim to preside at lawsuit", and Japanese "the right of defendant" derived from "the right of acceptance of a judgment " in their constitution. Vehement academic contend has been aroused and some schools of thoughts come into being, such as Yoshimura and Takeshita said. Nevertheless, due to the nonfeasance participation of procurators and the passive official principle, the legitimate rights of the third party is often neglected. It is natural that the frequent occurrence of violation cases leads to the existence of the system of summons and denuntiatio under action in personnel litigation.Procuratorate's participation personnel litigationA great deal cases concerning public benefits get the traditional theory of "capacity to be a party " into a troubled state. As the scope and depth of an entity's rights is gradually discovered by the judicial and established by the legislative, traditional theory of "capacity to be a party" has been increasingly questioned and challenged. The concept of the proper litigant under the procedural litigant has been widened to a large extent, further promoting the relaxation of essential elements of capacity to be a party and bringing about the enlargement of jurisdiction. Because of the particularity of the object of action and effects against all the world of the judgment, the indiscriminative application of the traditional theory of "capacity to be a party" would contrast sharply with the notion of civil litigation because it goes against the protection of the third party and public benefits. The creation of security of litigation theory alleviates the theory of "capacity to be a party". And procurators' participation in the personnel litigation as an official party roots from direct prescriptions in the law books. Meanwhile, procuratorate's participation in personnel litigation in China is provided ample theoretical foundation by the study on the theory of litigation concerning public benefits, the ratification of procuratorate's participation in civil litigation by the Chinese legislative, as well as legislative examples in other nations. Issues including the theoretical basis for procuratorate's participation in personnel litigation, the meaning of law, the way and the scope of participation will be covered in this part. Other important issues to be touched upon are: whether the participation violates the balanced structure of "isosceles triangle" in civil litigation; how to position the procuratorate's role; the necessity and possibility of participation, etc. Because of the difference in the capacity to be a prosecutor and to be a defendant, procurator's participation in personnel litigation as a party also has dissimilar function and meaning. From the public's view, instituting personnel litigation acknowledges procurator's right of substantive interference into the legal relation of the defendant's status; while procurator's participation as a defendant is meant to satisfy the need for a mutual questioning structure. As a result of the special status of the procuratorate and the intrinsic defect of the legal system, the permission of procuratorate's participation in the procedure of personnel litigation will inevitably bring about racial impact on the traditional theory of "capacity to be a party" in China. In the face of the mismatch between ideal and reality, theories of civil litigation in China have to make a painful choice in the conflict. The establishment of the procedure and the system of procuratorate's participation in personnel litigation will beset with bewilderment and difficulties. The conception of establishing lawsuit procedure of personnel in China This part firstly makes a concise depiction of the status quo of lawsuit procedure of personnel in China, and further analyzes its drawbacks and causes of formation, and then goes on to point out that it is essential to establish an independent lawsuit procedure of personnel in the practice of personnel litigation trial in China. The process should carried out based on the current system info of civil litigation, rather than blindly apply the foreign theories regardless of the traditional framework of theories. Drawing experiences from the foreign forthgoers, the establishment of the system of lawsuit procedure of personnel should adopt the way of "soft landing". In a country with insufficient theoretical preparation and deficient legal system, the legislative principle, the setup of the justice institution and the scope of application should take the situation of China and the tradition of legislation into account. Any racial measure will bring about considerable impact on the current system and lacks feasibility for operation. Therefore an approach combining transplantation and localization should be taken. The author holds that establishing the system of lawsuit procedure of personnel should not become a process of merely discussing theories and mechanically learning from the foreign regulations. On the contrary, a good many factors should be pondered over such as the current litigation pattern and civil litigation theory, and judges' qualities. Only on the basis of a solid understanding of the status quo of China can there be the possibility of establishing a scientific and reasonable lawsuit procedure of personnel.
  • dc.subject.discipline
  • D925.1
  • dc.date.issued
  • 2005-03-01
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