应单独制定我国的非讼程序法

Non-contentious Procedure Law should be Formulated Separately in China

非讼程序是审理非讼案件所适用的程序,具有监护、确认、许可、证明及预防纠纷的功能。然而,非讼程序在我国的现状是,立法逻辑不严谨、案件范围过于狭窄、与诉讼程序的转换机制不健全以及利用率低,不能在实践中充分发挥作用。制定单行的非讼程序法符合程序设置的发展规律,并有利于构建科学的立法体例和扩充非讼程序的容量及篇幅。建议单行法应扩大非讼程序的适用范围,体系结构采用"总—分"形式,还要特别考虑非讼程序与诉讼程序的转换机制、非讼程序的救济机制等问题。

Non-contentious procedure is applicable to the trial of non-litigation case program, with functions as follows： care, confirmation, license, certificate and preventing disputes. However, there are so many deficiencies in non-contentious procedure in the current situation of our country, for example, the legislative logic is not rigorous, the scope of the case is too narrow, the mechanism is not perfect with the conversion of the proceedings, the utilization rate is low, and it cannot fully play its role in practice. Establishing independent non-contentious procedure law meets the development regularity of program settings. In addition, it is also conducive to the construction of scientific legislative system and expanding the capacity and space of non-contentious procedure. The authors suggest that separate law should be applied to expand the scope of non-contentious procedure; architecture should be applied total -sub form, and conversion mechanism for non-contentious procedure and proceedings and relief mechanism for non-contentious procedure should be considered.