Research On Family Affair Investigator

On April 21 st,2016,the Supreme People’s Court issued the document “Opinions of the Supreme People’s Court on Launching the Trial Work of the Family Trial Methods and Work Mechanism Reforms”,and proposed to introduce the system of the family affair investigator in China,aiming to use people with psychology and sociology knowledge to assist the court in investigating family cases.The family affair investigator system originated in Japan and the duty of the family investigators is mainly to investigate the necessary matters in family trials and mediation..China is currently in a family-trial reforming period,lacking mature family-trial experience,and not having an independent family court like Japan,nor special procedures for family-trial.So the exploration of family affair investigator system meets many difficulties,which affects its function.This article studies the key theoretical issues that need to be clarified in the system of the family affair investigator,and tries to make some suggestions for the introduction of the family affair investigator system in China.The full text is divided into four parts:The first part: The practice investigation of the family affair investigator system.Since2013,many courts have carried out various beneficial explorations about the the family affair investigator system.However,due to the lack of theoretical research and the blankness of the legislation,there are many difficulties in the exploration of the the family affair investigator system.For example,the range of duties of the family affair investigator is unclear,the nature of the investigation made by family affair investigator is unclear,the nature of the report made by family affair investigator is unclear,the scope of cases which can be invested by family affair investigator is unclear,and the lack of procedural guarantee to the parties.The second part: The theoretical analysis to family affair investigator system.This part includes the legal foundation and the functional orientation of the family affair investigation system,the nature of the investigation made by family affair investigator,and the legal nature of the family investigation report.Because family cases involve public interest,family trials apply doctrine of ex officio,which is the legal foundation of the family affair investigator system.The family investigators use their professional knowledge to assist the judge in investigating the facts of the case,which has three functions.Firstly,it can help the party who lacks litigation ability,making the litigation status return to a balanced state,and thenrealizing substantive justice.Secondly,it can realize the separation of the judge and the investigator,to ensure the neutrality of the judge.Thirdly,it can ensure the professionalism of the family-trial.The family affair investigator system is a part of public remedy as a means to strengthen the ability of the court to investigate facts.Therefore,the investigation of family affair investigator belongs to the category of judicial investigation.The family investigation report is divided into two parts.The records of the fact-finding investigations made and the information collected by the family investigators is evidence.However,their assessment and recommendations are difficult to define in the scope of the current civil evidence system in China.The third part: The family affair investigator system in the perspective of comparative law.The system of family affair investigator originated in Japan and is used by the Taiwan region of our country.It is a special institution that is set up in the court for investigation specially.There are also countries that do not set up special investigation institution in the court,but commissioning external court agencies or personnel to conduct investigations when necessary.In the process of localizing the family affair investigator system,China should decide whether it should keep the public nature of family affair investigator like Japan or use the method of commission.Both Japan and the Taiwan region of our country have stipulated the selection and responsibilities of the family affair investigator and the range of cases applicable to the family affair investigator system,and China can use them as a useful reference.The forth part: The construction of the family affair investigator system in our country.This part discusses several key issues in the construction of the family affair investigator system,include the scope of application of the family affair investigator system,the duties of the family affair investigator,the identification and selection of the family affair investigator,and the rights and procedural safeguards to the parties.The investigation of the family affair investigator is part of the court’s power to investigate evidence.Therefore,the scope of the case to which the family affair investigator system can be applied depends on the scope of the courts’ authority to investigate facts.In addition to performing the duties of fact-finding in family trials and mediation,the family family affair investigator should also perform the duties of advising obligor in the executive process when necessary.In view of the task of our courts intervening in interpersonal relationships behind family disputes,our family affair investigators should be officers in the court.Family investigations focus on thepsychological facts and facts of life.Therefore,the election criteria for family affair investigators are those with professional background in psychology,education,sociology,and humanities.Finally,to protect the procedural rights of the parties,the parties should have the right to apply and raise objection to the commencement of the family investigation procedure,and the right to know and to debate the content of the investigation report.