| The particularity of family disputes determines the severity of the fact finding process,and to some extent,impacts the existing civil evidence system.As an important part of the family trial system,the family investigator system is intended to find out the hidden truth behind family disputes.The Civil Code,to some degree further improves the regulations of the family system,demonstrating the protection of the interests of the disadvantaged groups such as minor children.However,the realization of civil entity rights ultimately depends on the completeness of the litigation procedures design.But there are no corresponding litigation procedure rules designed with characteristics of family disputes incorporated into Civil Procedure Law,and there is no special Family Dispute Law or Family Litigation Procedures.The family affair investigator system has not been legislated.Although local courts have formulated corresponding normative documents in the process of exploring reforms in family trials,the related regulations and practices are of great difference.The loss of legislation and roughness of regulatory documents has caused theoretical controversy,and has also brought confusion and obstacles to practical operation.Based on that,this article chooses the family affair investigator system as the research topic,in order to further clarify the basic theoretical controversy of the family affair investigator system,deeply analyze the behaviors in practice,and correct the biased practices.This article is problem-oriented,starting with the practice of the family affair investigator system in China,explains the basic theory of the family affair investigator system,analyzes the generation logic and operation approach of the family affair investigator,and proposes an operation plan for the investigation procedure by focusing on the highly controversial issues in theory and practice,which are the nature and the applicable rules of the family affair investigation report.Finally,in combination with the background of the construction of smart courts and the actual needs of large-scale and standardized operation of family affair investigations,the informatization construction of family affair investigations is explored and improved.In addition to the introduction and the conclusion,this article is divided into six chapters.The framework and main contents of this article are as follows:In the introduction part of this article,the author puts forward the research object,clarifies the research significance,deeply analyzes the research status at home and abroad,sets the research technology approach,and roughly describes the argumentation framework.The first chapter introduces the empirical analysis on the exploration of family affair investigator system in China.The research methods used in this article mainly are empirical methods,including surveys and interviews to conduct an empirical analysis of the family affair investigator system which is being explored in China.Through the analysis of sample data from 15 courts in 7 provinces and cities in the east,west,central and south of our country,the author is trying to truly and comprehensively show the practical appearance of family affair investigator system in China.The practices of the family affair investigator system by courts across the country have achieved fruitful results.However,the pilot courts in various regions have arbitrarily expanded the scope of family affair investigations,and there is lack of enough procedural protections of family affair investigations,and family affair investigations have not formed a scale effect.The second chapter is the basic theory of the family affair investigator system.As the theoretical foundation of the whole research,the family affair investigator system is analyzed from the jurisprudence perspective.Family affair investigators are different from procedure supervisors,expert assistants,inspectors or appraisers.Family affair investigations belong to judicial relief.Based on considerations of the particularity of family disputes,the application of legal principles of powers,and the separation of powers of trial and investigation,the family affair investigator system is justified for establishment.The function and value of the family affair investigator system lie in supplementing the insufficiency of fact-finding in cases,easing the pressure of professional trials,and improving the authority and enforceability of judgment.The operation of the family affair investigator system should be carried out under the guidance of certain basic principles,so as to ensure that family affair investigators conduct investigations in accordance with law and to conform to the value pursuit of procedural fairness and substantive fairness in civil litigation.The third chapter is the generation logic and operation approach of the family affair investigator.Family justice reform should be based on the country’s overall environment of justice and society in transition.The professionalization of trials and the socialization of family litigation have given birth to the family affair investigator system.As judicial assistants,there should be strict selection mechanism of family affair investigators.Responsibilities of family affair investigators should be clarified,and the treatment of family affair investigators should be improved.Training and assessment of family affair investigators should be conducted to improve the professional level of family affair investigators.The supervision and punishment of family affair investigators should be enhanced to ensure that family affair investigations run on the track of the rule of law.The role of the family affair investigator system is bound to be affected by the cooperative mechanism of family affair investigators.The cooperation mechanism of family affair investigators includes the internal cooperation mechanism and the external cooperation mechanism of family affair investigators.The “three-member” system composed of family affair investigators,family mediators,and family judges is the internal cooperation mechanism of family affair investigator system;the external cooperation mechanism of family affair investigators mainly refers to the cooperation relationship during the investigation between the family investigators and the public security,neighborhood committees,and external social entities such as streets and women’s federations and so on.The fourth chapter is the operation of family affair investigation procedures in China.The establishment of the family affair investigator system is a prerequisite for the application of family affair investigation procedures in judicial trials.Family affair investigations are not applicable to all family disputes.The types of cases applicable to family investigations are some family litigation and non-litigation cases.The scope and items of different types of family dispute investigations are not the same.The types of facts in family investigations should not only be limited to legal facts,but also cover life facts,psychological facts,and other facts.During family investigation procedures,the procedural protection of the parties is of paramount importance.As an important procedure for resolving family disputes,family affair investigations should follow certain rules for the initiation,operation,suspension and termination of the procedures.Under certain circumstances,supplementary family affair investigations and family counter-investigation procedures can be initiated.Finally,a procedural system for family affair investigations is established to provide a procedural carrier for the functioning of the family affair investigator system.The fifth chapter is the nature and applicable rules of the family affair investigation report.The nature of the family affair investigation report,which is the result of the family affair investigation,is very important.The nature of the family affair investigation report is the premise of the applicable rules of the family affair investigation report,and it is also the source of the legality of the family affair investigation report as the basis for determining the facts.The author of this article holds the view that family affair investigation reports should be defined as social science evidence.The family affair investigation report should have a uniform format and reasonable content.The family affair investigation report may contain some private content.Whether to publicize and how to disclose it has also become an issue that the court must face.In terms of procedures,the parties should be given the right to cross-examine the family affair investigation report as social science evidence.The certification rules for family affair investigation reports are different from the certification of ordinary evidence.It should be treated differently according to the circumstances.There are three situations regarding to the certification results of the family affair investigation report,which are full adoption,partial adoption and no adoption.The sixth chapter is the informatization of rules on family affair investigation principles.With the rapid development of Internet technology,the informatization of family investigations has become an indispensable part of the family affair investigator system.The informatization of family affair investigation has not only its practical and theoretical necessity,but also the feasibility of its realization.The informatization of family affair investigation system is faced with the following four dilemmas: The deviation of the typification of family affair investigation cases from the particularity of individual cases,the confrontation between the pursuit of efficiency in family affair investigations and the concept of family trials,the contradiction between "despatialization" of family affair investigations and on-site visits,the opposition between information security and privacy protection in family affair investigations.All in all,the construction of the informatization of the family affair investigation in China should clarify the concept of the informatization of family affair investigation system,build the database of the informatization of the family affair investigation system,and operate the family affair investigation intelligently. |
