The Consolidated Trial of Family Affairs
Date Issued
2016
Date
2016
Author(s)
Liu, Huan-Chen
Abstract
The Family Proceedings Act which was implemented on June 1, 2012 merges meditation, suit, non-litigious and enforcement in single code. Moreover, to ensure multitude matters of the same family can be heard by the same judge in the same procedure to protect substantive and procedural interests, and to preserve the efficiency of the procedure and the stability, which is not satisfied by previous procedure law, the Family Proceedings Act not only classifies ‘Integration of procedure’ as legislative purpose, and also loosens restrictions of consolidation of family proceedings. However, after the implementation of the Act, there is a lot of disputation about the elements, legal theories, and the procedure of appeals of consolidation of family proceedings. Thus, it is important to figure out all of these problems,and that’s why this thesis comes into existence. This thesis has five chapters. The first chapter is to clarify the motivation of the study and bring up questions. Chapter 2 analyzes the elements and the form of the consolidation of family proceedings. The first part of this chapter is ‘Consolidation of Family proceedings’, this part figures out the elements, the scope, as well as the form of joinder of claims and parties. It also admits the consolidated hearing and trial of family affairs and civil matters when the basic truths of these matters are Implicated, meanwhile agreed by both parties or shown the needs of Integration of procedure. The second part of Chapter 2 touches upon the amendment and raising of claims, as well as the counterclaim. This part clarify the elements of the amendment and raising of claims, as well as the counterclaim in the first and second instance. It also admit that if it meets the elements above-mentioned, the litigants may do the amendment and raising of claims, as well as raise the counterclaim of civil matters in family proceedings. Also, the Family Proceedings Act strengthens the court’s elucidative duty of amendment and raising of claims, as well as the counterclaim, and its reason would be clarified in this part. Chapter 3 probes into the consolidation and separation of proceedings. The first part interpret the transfer of proceedings in cases of pendency of several family matters between the same or different instance, the procedure of its appeals, and the following procedure after the transfer of proceedings. The second part of this chapter focuses on the interpretation of the Act 42 I of the Family Proceedings Act, and the analysis of the appliance to this Act by trial practice. It points out that trial practice shall apply to this Act to avoid the procrastination of the proceedings, but not separate the proceedings just because the different nature of the matters. Chapter 4 interpret how to apply the legal theories of procedure in consolidated trial. The first part is about the legal theories of procedure which shall be amended in consolidated trial, sequentially interpreting these legal theories of procedure which is set and not set into the Family Proceedings Act. In principle, when consolidating the proceedings with different natures, the proceeding of family suit shall be as a focus. Therefore, in these cases, the matters shall be trialed by judgment, and shall not be held in public if the court, and hearing through oral argument. Besides, the restricts of abandoning and admitting the claim in Act 46 I of the Family Proceedings Act should also be interpret appropriately to meet the purpose of Integration of procedure. The second part of this chapter introduce the which would not be amended in consolidated trial, concluding: Timely proposed doctrine, the System of ex offici and Cooperative System; Strict Proof and Free Proof; the Standard of Proof; and the effective of judgments and ruling. Except for those can apply to the proviso of Act 10 II of the Family Proceedings Act, the proviso of Act 278 II of the Code of Civil Procedure, and the proviso of Act 288 II of the Code of Civil Procedure to avoid the disagreement of judgments, in the other cases, it doesn''t matter to occur the disagreement of judgments by applying different legal theories of procedure in consolidated trial, but the judge should put down in writing of the reason in the judgment. The fifth chapter probes into the appeals of the judgment of consolidated trial. This chapter focus on the interpretation of Act 44 of the Family Proceedings Act, sequentially analyzing the appealing procedure of the judgment of suits and non-contentious matters, the judgment of several suits, and the ruling of several non-contentious matters. If there is special need of avoiding the disagreement of judgments, it should relax the ristricts of appeal. If the party only appeals against a part of the judgment, the court should hearing by the original proceeding. If the proceeding should be transfer because of an incidental appeal filed by appellee, the court may transfer to the appropriate proceeding. Besides, if necessary, the court should apply Act 44IV by analogy to the cases when the non-contentious matter is premise matter. Also, there may be a different conclusion from which in the Code of Civil Procedure about the allowance of filing an incidental appeal or expanding the demand in third instance of family proceedings to meet the propose of integration of procedure. Chapter 6 clarifies the disputes of consolidation of proceedings in family mediation and domestic special non-contentious proceedings, including: the elements, and the consolidation or separation of proceedings. The last chapter is to make a conclusion of all disputes above-mentioned. However, the ‘Preclusion Effect of Final and Binding Judgment’ is also related to the propose of Integration of procedure, and it is out of the scope of this thesis, remaining to be study.
Subjects
Integration of procedure
Family Affairs
Civil matters
Consolidation of Proceedings
Consolidated Trial
joinder of claims
Joinder of Parties
the Amendment and Raising of Claims
Counterclaim
Separation of Proceedings
Separated Trial
Transfer of Proceedings in Cases of Pendency of Several Family Matters
Legal Theory of Procedure
Non-Contentiousness Hearing of Litigation
Appeal
to Be Deemed to Be Appeal
Family Mediation
Domestic Special Non-contentious Proceedings
Type
thesis
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