Study On The Presumption Of Children Born In Wedlock At The Intersection Of Tradition And Modernity

Children born in wedlock refer to the children born by parents during the period of marriage.The relationship between children born in wedlock plays an important role in the marriage and family relationship.In order to maintain a harmonious family relationship,protect the legitimate rights and interests of children,as well as to prevent the difficulty of proving that children are born out of wedlock,every country has set up a presumption system for children born in wedlock.China’s "marriage law" stipulates that the children born during the marriage relationship between husband and wife are children.In fact,the presumption system of children born in marriage has been established.However,with the progress of society,the development of technology and the further improvement of the legal system,it is relatively easy to deny the presumption of legitimate children,and the damage to the disputed children is also gradually reduced,from the practice of the denial of legitimate children cases gradually increased.Most of these cases take DNA evidence obtained by one party before litigation as negative evidence,and the evidence of DNA evidence is very strong,so the presumption of children born in wedlock has become a "bubble easy to break" in the face of modern technology.It must be noted that the presumption of legitimate children has different value goals or system reasons in different historical periods.Under the traditional background,the purpose or system reason of the presumption system of legitimate children is to maintain family stability,prevent children from being identified as "illegitimate children",and avoid the proving dilemma of civil litigation.Indeed,in traditional society,especially in the early social background,once children are identified as "illegitimate children",their legal status and social status will be greatly affected.In many countries and regions,"illegitimate children" cannot be brought up by their parents or have the right to inherit their parents’ property.At the same time,it was difficult to prove that children were born out of wedlock in the background of technology at that time.Under the background of modern legal system,the United States "unified parent-child law" as the representative,abolished the "illegitimate child" system and the title of "illegitimate child",and stipulated that all children born in marriage and illegitimate children are equal in legal status.One of the social stigma labels associated with "illegitimate children" is gone.At the same time,with the development of modern science and technology,especially with the emergence of blood group identification and DNA identification technology,as well as the widespread use and cheap application,it is no longer a difficult problem in civil litigation to deny the presumption of legitimate children.Some countries and regions even take the result of DNA as another presumption contrary to the presumption of legitimate children.However,the institutional basis of the traditional presumption of children born in wedlock does not exist with the development of society and technology.As the basis of the traditional presumption of children born in wedlock,maintaining family harmony is still an important value goal of the modern marriage and family system.The research shows that harmonious family has a great influence on children’s growth,and it is the key factor that affects children’s healthy growth.All kinds of teenagers and young people with problems grow up in the handicapped family environment,and the young people who come out of the harmonious family generally have sound personality,character,intelligence and other aspects of development.Therefore,even in the face of new science and technology that can easily overturn the presumption of children born in wedlock,even in the face of the system that children born in wedlock and children born out of wedlock are equal in legal status,all countries and regions still recognize the necessity of modern existence of the presumption of children born in wedlock and the important position of the presumption of children born in wedlock in family relations.Of course,considering the changes of society and the development of technology,all countries and regions also recognize the difference between the modern presumption of children born in wedlock and the traditional presumption of children born in wedlock.It is generally believed that the traditional presumption of children born in wedlock is irrefutable,while the modern presumption of children born in wedlock is a rebuttable presumption.At the same time,considering the modern value and system foundation of the presumption of children born in wedlock first,combining with modern technology,it is easy to refute the proving power of the presumption of children born in wedlock.The general direction of each country and region in dealing with this problem is to limit the application of DNA,especially the application of forced paternity determination in the case of denial of children born in wedlock,and stipulate the special conditions of DNA application,so as to coordinate the birth in wedlock The balance between the presumption of children and the development of modern science and technology.In order to solve the disputes related to the determination of children born in wedlock,the Supreme People’s Court issued several interpretations on the trial of disputes in marriage and family cases(Ⅲ),hereinafter referred to as interpretation Ⅲ of marriage law,which is of positive significance to promote the parties to cooperate with the court’s order and participate in the compulsory DNA identification.Article 2 of interpretation 3 of the marriage law is also considered by most scholars as a kind of forced paternity test,which is an indirect force rather than a direct one.That is to say,the court can infer the existence or nonexistence of the parent-child relationship if it does not cooperate with the paternity test.For this reason,scholars call the presumption established by such a regulation as the paternity test presumption.Different from the relationship between the modernization of parent-child identification and the presumption of legitimate children caused by modern science and technology,interpretation Ⅲ of marriage law promulgated by the Supreme People’s Court of China has no sign or tendency to combine with the determination of legitimate children,which is not to limit the application of DNA in the confirmation of legitimate children Instead,we should encourage DNA to be used in the confirmation of legitimate children.The understanding of Article 2 of the third interpretation of marriage law in domestic academic circles is more about the understanding of "necessary evidence" and the standard of proof in the case of the confirmation of children born in wedlock.Of course,some scholars criticize the "presumption of paternity test" established in Article 2 of interpretation 3 of the marriage law from the perspective of the distribution of burden of proof,but few or basically no one studies the "presumption of paternity test" stipulated in Article 2 of interpretation 3 of the marriage law from the perspective of the presumption of children born in wedlock,so it is impossible to confirm the DNA test in the lawsuit of children born in wedlock It provides theoretical guidance and theoretical wisdom in system application.This paper intends to sort out the traditional to modern change process of the presumption of children born in wedlock and the institutional basis behind it,and on the basis of recognizing the presumption of children born in wedlock,explore the limited use conditions of DNA in the lawsuit of the confirmation of children born in wedlock,so as to realize the coordination and balance between the presumption of children born in wedlock and the right of action of the confirmation of children born in wedlock.This paper is divided into six parts:The first part is the introduction.The main contents include the status of the presumption system of children born in wedlock in the litigation of the confirmation of parents and children in China,the problems of the Supreme People’s Court on the application of judicial interpretation to the paternity appraisal,the research status at home and abroad on this issue,and the theoretical value and practical significance of further research on this topic.Research methods,research plans,research conditions,etc.The second part is the traditional presumption system of children born in wedlock.This paper introduces the content of traditional presumption of children born in wedlock.Before the third interpretation of marriage law,the basis of presumption of parent-child relationship is mainly Article 75 of marriage law and evidence provisions,as well as the comparison of domestic and foreign legislative status and reference experience,and analyzes the necessity and feasibility of establishing the presumption system of children born in wedlock in China.The third part is the modern presumption system of children born in wedlock.With the development of modern science and technology of "illegitimate child" legalization,paternity identification is more and more used in paternity presumption.The traditional system of children born in wedlock faces challenges in all aspects,and more and more problems are exposed.After the promulgation of interpretation Ⅲ of marriage law in 2011,the content of the current system of presumption of children born in wedlock is introduced.The fourth part,the content and problems of the presumption of paternity test in China.The development of science and technology has brought about the maturity of paternity testing technology,which led to the promulgation of interpretation 3 of marriage law in 2011,in which Article 2 created a new presumption model of paternity relationship-paternity testing presumption,which mainly describes the content of paternity testing presumption and the problems in the application of paternity testing in China.The fifth part is the legislative reform of presumption of paternity test.It mainly wrote how to improve the presumption rules of paternity appraisal and the suggestions of the supporting system in the legislative level.