家事案件审判程序的构建:以离婚案件为例

The Construction of Trial Procedures for Family-related Cases: A Case Study of Divorce

区别于普通的民事纠纷,家事案件是种以身份关系为核心的特殊民事纠纷,通常发生在具有家庭身份关系的亲人之间,其中又以离婚案件最为常见。婚姻家庭法立法宗旨是维护家庭关系的相对稳定,但在程序法上却沿用了普通民事诉讼的抗辩原则,实体法与程序法的悖离导致家事案件往往得不到妥善解决。文章分析了我国家事案件的立法和司法现状,提出了我国家事审判程序应着眼于调解前置且贯彻始终原则、离婚案件程序不公开原则、离婚案件中双方当事人亲自到庭原则、适当放宽审限原则、提倡合并审理原则等五个方面来构建。

Different from ordinary civil disputes,the family-related dispute is a kind of special civil dispute,in which the identity relationship is the core; it usually occurs among family members,and divorce is the most common case.The legislation purpose of law for marriage and family is to maintain the relative stability of the family relationship,but in the procedural law,however,the principle of defending in the ordinary civil litigation is adopted,therefore,deviation of substantive law and procedural law in dealing with family cases often result in failure. In this paper,the current legislative and judicial status of our country involving family cases is analyzed,and a proposal for the construction of China＇s domestic trial procedure is put forward in five aspects,namely,following the principle of pre-trial mediation consistently,the principle of keeping divorce proceedings in camera,the principle of having the parties in divorce cases personally appear,the principle of appropriately prolonging the time limit,and advocating the principle of amalgamated trial.