A Comparative Study Of Trial Procedures For Disputes Over Visitation Rights Between China And Japan

Because of the stipulation of visitation right system in our country,it is too simple and abstract in substantive law and has no practical operability.In procedural law,due to the particularity of family affairs,it is inappropriate to apply traditional judicial procedures,which ultimately leads to the settlement of disputes over visitation right has always been a major difficulty in the field of judicial practice in our country.Under the background of family trial reform,we should consider how to improve the procedural rules so as to settle disputes over visitation rights faster and better and protect the legitimate rights and interests of the parties and minor children.On the contrary,Japan has a relatively deep research on the settlement of disputes over visitation rights,especially in recent years,Japanese academic circles have discussed two kinds of judicial principles and discretion benchmarks of disputes over visitation rights in many aspects.This paper hopes to provide useful reference for the improvement of the judicial procedure of disputes over visitation rights in China by drawing lessons from and comparing them.In addition to the summary and thanks,the text contains more than 30,000 words,which are divided into five parts as follows:The first part is the positioning of substantive legislation of visitation right.Because the right of visitation is a concept of civil law,the premise of hearing disputes is to understand what is the right of visitation,so through the theoretical definition of the concept and positioning of substantive legislation to discuss.The second part is a comparative analysis of the attributes of the trial procedure of the disputes over visitation rights between China and Japan.In the analysis of the reasons and limitations of invoking ordinary civil trial procedure in China,this paper discusses the reasons why Japan adopts non-litigation trial and the procedural guarantee under non-litigation trial.The third part is a comparative analysis of the trial principles and discretion benchmarks of the disputes over visitation rights between China and Japan.Compared with the situation of unclear trial principles and abstraction of discretion benchmarks in China,there are two kinds of trial principles and discretion benchmarks in Japanese judicial practice.Although both of them are based on the principle of maximizing the interests of children,their effects are different.This paper makes an analysis of them.The fourth part is a comparative analysis of the procedural status of minor children in the trial of disputes over visitation rights between China and Japan.In the absence of procedural status guarantees for minor children in the current trial process in China,this paper analyses how Japan confirms and introduces procedural agent system for minor children through legislation,so as to better protect the interests of children in the trial process.The fifth part is a comparative analysis of the contents of the judgment of the disputes over visitation rights between China and Japan.In the case of discrepancies and irregularities in the current referee content in China,this paper analyses how Japan optimizes the content of the referee of visitation power by trying out the system of visitation and specifying the specific items of the content of the referee of visitation power.The sixth part mainly puts forward suggestions on the perfection of the judicial procedure rules system of visitation right in our country.