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在民事司法实践中,囿于家事审判程序规范的缺失,裁判者对于家事诉讼程序制度的理论认识不足,从而重视程度有限。而家事诉讼程序制度与一般民事诉讼程序相比,虽然在制度目的上均有保护私权与解决纠纷之作用,唯在程序进行之原则及方法上有其特有属性。在民事诉讼中,家事纠纷的解决因其涉身份情感关系而蕴含特殊的程序原理与程序规定,法院在处理家事纠纷时,当事人的处分权与法院裁判权的关系与涉及契约、侵权的等财产权利义务的民事纠纷迥然不同。正因为家事纠纷的特殊性,许多国家和地区设立了与家事纠纷审理相适应的程序制度。从程序保障的角度来说目前较为单一的民事诉讼审判模式并不适应家事审判诉讼标的的特殊价值,也难以保证民事诉讼正义程序的要求。本文中,笔者阐述了现有的民事诉讼程序及审判机构配置不足以应对家事审判的原因及现状,并在此基础上进行应然状态的剖析,阐释了为满足家事诉讼的特殊功能而设立家事诉讼程序及建立家事法庭的必要性及路径,以期为我国建构家事诉讼程序,设立家事审判机构提供参考。
In the practice of civil justice, due to the lack of norms of family justice procedure, the judges have limited understanding of the theory of family procedure system. Compared with the civil procedure, the system of family procedure has the unique property of principle and method of proceeding though it has the function of protecting private right and settling disputes both in terms of system. In civil litigation, the settlement of family disputes contains special procedural principles and procedural rules because of the affective relationship of identity. When the court deals with family disputes, the relationship between the parties’ disposition and court jurisdiction is related to the property such as contract and infringement Civil disputes about rights and obligations are very different. Due to the particularity of family disputes, many countries and regions have set up procedural systems that are compatible with family disputes. From the perspective of procedural safeguards, the current single trial mode of civil litigation does not adapt to the special value of the litigation target of family litigation, and it is also hard to guarantee the requirements of the civil procedure justice procedure. In this article, the author expounds the existing reasons and status quo of the existing civil procedure and the allocation of judicial institutions to deal with the family trial, and on the basis of the analysis of what should be done, explains the establishment of family members to meet the special functions of family litigation Litigation procedure and the necessity and path of establishing Family Court, with a view to providing references for our country to construct family affairs proceedings and set up a family trial agency.