legal master

Chapter 12 Questions and Answers about Marriage and Inheritance (11)
In accordance with the spirit of relevant judicial interpretations in our country, the man has the right to refuse to bear the obligation of bringing up children who are not his own. To determine whether the child is his own, the paternity test conclusion is one of the very important evidences, but it cannot be used as the only evidence, and other evidence should be presented as much as possible. There is strong evidence to support it.

In this case:

1. If a divorce lawsuit is filed with the court and the man claims that the child is not his, the man can apply for a paternity test. According to the principle of who claims and who proves in civil proceedings, the man should pay the test fee.

2. If the man agrees to pay for the paternity test, but the woman disagrees and does not hand over the child, then the paternity test cannot be done, and the court can draw a conclusion that is unfavorable to the woman. Article 75 of the "Regulations on Evidence": "If there is evidence to prove that one party holds the evidence and refuses to provide it without justified reasons, if the other party claims that the content of the evidence is unfavorable to the evidence holder, the claim can be presumed to be established."

3. If the court finds that the child is indeed not the man during the lawsuit, the man has the right to demand spiritual compensation.

4. If both parties to the litigation agree to a certain claim, the court can affirm it. Article 72 of the "Evidence Regulations": "If the evidence presented by one party is accepted by the other party or the contrary evidence presented is not sufficient to refute it, the people's court may confirm its probative force. For rebuttal evidence, if the opposing party accepts the rebuttal evidence, the probative force of the rebuttal evidence may be confirmed.”

tips

If the paternity test is not entrusted by the court, public security, family planning and other departments, the following relevant procedures must generally be completed:

1. All parties need to know and agree to conduct a paternity test.

2. All the parties jointly present the paternity test statement to the notary department for notarization.

3. After completing the notarization procedures, the person concerned should go to the office in person or contact by phone to make an appointment for the paternity test.

4. According to the agreed time, all parties shall bring their notarized paternity certificates, ID cards of the parties, copies of ID cards, and birth certificates for minors, copies of birth certificates and a recent photo to collect blood samples at the Judicial Parentage Institute.

40. How to confirm parent-child relationship?

Wen Mou and Zhou Mou work in the same hospital, and their relationship exceeds that of ordinary men and women.Soon Wen found out that she was pregnant and asked Zhou to divorce his wife.Fearing that the exposure of the matter would have adverse consequences for him, Zhou paid Wen a total of 5000 yuan three times and asked him to have an induced abortion, but Wen disagreed.Afterwards, Wen gave birth to a girl, and listed her biological father as Zhou on her birth certificate.Wen Mou asked Zhou Mou for child support twice, but was rejected, and Wen Mou then appealed to the court.The defendant Zhou admitted the fact that he and Wen lived together, but denied that the child was born to him and Wen, and did not agree to bear the child support.

During the trial of this case, the defendant Zhou, who was legally summoned by the court, neither appeared in court to respond to the lawsuit, nor refused to take a paternity test.There are two different opinions on whether the parent-child relationship can be confirmed in this case.

The first opinion holds that in the case where the plaintiff lacks direct evidence and the defendant does not appear in court, if the defendant is ordered to bear civil liability with an obvious identity relationship, it will objectively encourage the parties to abuse their right to sue, which is not conducive to the defendant’s In order to protect legal rights and interests, the plaintiff's claim should be dismissed.

The second opinion is that if the defendant Zhou refuses to conduct a paternity test and does not provide other evidence to prove that the birth of the child has nothing to do with him, he should bear the responsibility for losing the lawsuit.

Analysis according to law
The author agrees to the second point of view.

First of all, there is only one most direct evidence in this case, which is the paternity test to confirm whether the child and Zhou have a parent-child relationship. Article 17 of the "Regulations on Evidence" stipulates: "The parties and their agents ad litem may request the people's court to investigate and collect evidence for other materials that cannot be collected by themselves due to objective reasons." If you give up your litigation rights and prevent the court from collecting evidence, you should bear the responsibility for losing the lawsuit.At the same time, in order to achieve the purpose of evading civil liability, the defendant Zhou refused to appear in court after being summoned many times by the court. Such parties who ignore the law and contempt the court should be punished to a certain extent, which not only maintains the seriousness of law enforcement, but also It is also in line with the legislative spirit of civil litigation.

Second, the Supreme People's Court Fa Shi [1998] No. 14 "Several Provisions Concerning the Reform of Civil and Economic Judgment Methods" stipulates that if there is evidence to prove that the party holding the evidence refuses to provide it without justified reasons, if the other party claims that the evidence The content is unfavorable to the evidence holder, and the claim can be presumed to stand.

Third, from the perspective of social effects, if the court simply rejects the plaintiff's claim, the plaintiff will not be able to sue again based on the same facts and the same reason, and his legal representative Wen will not be able to provide more powerful new evidence on the original facts. According to evidence, as a child born out of wedlock, her daughter will never be able to confirm her identity through legal channels, nor can she obtain the maintenance she deserves from her biological father. This is obviously not conducive to the protection of the legal rights of women and children.

tips

Preparations for a paternity test generally include:
1.人员准备：（1）被鉴定人应由母——子——可疑父亲或父母——子组成，只要求父子或母子二人鉴定者一般要求说明鉴定理由；（2）成年被鉴定人均应自愿同意鉴定，14岁以上的青少年应适当征求其对鉴定的意见；（3）被鉴定人应了解自己或近亲属有无遗传病史。

2. Document preparation: (1) ID card (or work permit) of the person to be appraised, child’s birth certificate (or household registration) and other documents to prove the identity and mutual relationship; (2) If the appraisal is entrusted by the relevant unit, a commissioned Book.

3. Appraisal fee.Generally it is 2000 to 3000 RMB.

4. Commissioning of paternity testing, blood collection and report sending.

(1) For a case handled by a relevant unit, the case handling unit shall fill in the authentication power of attorney, and the case handling person shall lead the person to be appraised to a designated place for blood collection.The paternity test report shall be collected by the entrusting unit.

(2) Individuals who request an appraisal should contact the appraisal agency in advance and truthfully explain the reasons for the appraisal.The person to be appraised can fill out the power of attorney for appraisal and sign it.The appraisal report shall be received by one party or both parties through negotiation between the appraised persons.

41. What should I do if the child is unwilling to take a paternity test?
Lan Lan is a child of a single-parent family. In 1996, when Lan Lan was not yet one year old, her father Zhang asked for a divorce.Under the mediation of the court, the two parties reached a divorce agreement, agreeing that Lan Lan would be raised by her mother, and Zhang would pay Lan Lan a childcare fee of 7000 yuan in one lump sum, and the money would be cashed out immediately.

In February 2006, Lan Lan filed a lawsuit with the court, arguing that the 2 yuan her father paid for child support 10 years ago was relatively low, and she asked her father Zhang to pay 7000 yuan a month for living and study expenses until she lived independently.

Unexpectedly, in April 2006, Zhang also sued the court. The cause of the case was a dispute over the identification of biological parents, and both Lan Lan and her daughter were brought to court.Zhang believed that Lan Lan was not born to him and Cheng, and requested the court to confirm and apply for a paternity test.

Cheng argued that the evidentiary materials provided by the plaintiff Zhang had already been provided during the divorce in 1996, and they were old evidence rather than new evidence.At that time, the court did not determine that Zhang and Lan Lan had no parent-child relationship based on these evidences, but instead determined their parent-child relationship.The court’s 1996 civil mediation document has taken legal effect. Zhang does not have enough evidence to overturn the civil mediation document. The court must use the mediation document as the basis for determining the facts in the trial of the case. Zhang uses the evidence provided to prove himself There is insufficient evidence that there is no parent-child relationship with Lan Lan, so the court should make a judgment according to law.And Lan Lan thought that the paternity test would deal a heavy blow to her, and she would not be able to hold her head up in front of her classmates and friends, and she was determined not to do the test.

So, how should the court handle a lawsuit against a child who refuses a paternity test?
Analysis according to law
The two courts in this case ruled to the contrary.The court of first instance held that the plaintiff Zhang sued to confirm that he had no paternity relationship with Lan Lan, and because Lan Lan did not agree to the identification, the paternity test could not be carried out.At the same time, the 1996 civil mediation document that came into force by the court has confirmed the parent-child relationship between Zhang and Lan Lan. The evidence provided by Zhang cannot prove that there is no parent-child relationship between him and Lan Lan. Therefore, the plaintiff Zhang requested The court cannot support the claim to confirm that there is no parent-child relationship between him and Lan Lan.In accordance with the provisions of Article 25 of the "Marriage Law", the judgment dismissed the plaintiff Zhang's claim.

Zhang refused to accept the judgment of the first-instance court and appealed to the second-instance court. He strongly demanded a paternity test and requested the second-instance court to revoke the first-instance judgment and change the judgment after finding out the facts.Cheng requested the court of second instance to reject the appeal and uphold the original judgment.

The court of second instance held that both a man and a woman have the right and duty to raise their children after they enter into a marriage, and that children born to both parents have a direct blood relationship with either of the parents.In this case, within a relatively short period of time after Zhang and Cheng got married, Cheng became pregnant and gave birth to a child. Zhang suspected that the child was not born to him based on his own feelings and evidence, although Zhang had no evidence to prove that he had a relationship with Lan Lan. There is no parent-child relationship between them, but it is reasonable and legal for the prosecution to request a paternity test on whether Lan Lan was born to her. The purpose is to confirm the existence of blood relationship between father and daughter from a scientific point of view. Modern science and technology have been able to complete this test. .Now that Cheng and Lan Lan refuse to cooperate with Zhang in the paternity test, it is a legally stipulated situation where the parties hold evidence and refuse to provide it without justifiable reasons. Based on this, the court finds that Cheng and Lan Lan obstructed the production of evidence and should bear the disadvantages to them. According to the law, it is presumed that Zhang's claim is established.The court of second instance ruled to revoke the civil judgment of the court of first instance in accordance with Article 153, Paragraph 1 (75) of the Civil Procedure Law and Article [-] of the Evidence Regulations;

This case is a typical parent-child denial lawsuit. With the advancement of science and technology, the paternity test has become the most important and convincing evidence for the parties to deny the parent-child relationship, and is often raised by the parties in judicial practice.It is not difficult to conduct a paternity test in medicine. The key is how to apply the paternity test in litigation.Paternity test involves marriage, family, children's personal rights and property rights, and involves the privacy of the parties involved, so it should be applied with caution in litigation. On June 1987, 6, the Supreme People's Court issued the "Reply on Whether the People's Courts Can Use Human Leukocyte Antigens for Paternity Tests in Trial Work", which stipulated: "Paternity test is a serious work, and it should be based on the protection of women and children. Legal rights and interests are conducive to enhancing unity and preventing conflicts from intensifying, and should be treated with caution", and emphasized two points, one is that both men and women apply, and generally should be allowed; Mastery, for those that must be tested for paternity, we must also do a good job in the ideological work of both parties.This reply embodies the prudent principle of paternity testing.The specific operation of paternity test requires the cooperation of both parties and their children. In civil litigation, the status and status of both parties are equal. It is the right of one party to apply for paternity test, but the other party also has the right to refuse it. Probably also shouldn't be done through mandatory methods.

To deny the lawsuit of legitimate children, the plaintiff must bear the burden of proof, that is, to produce evidence to prove that the objective facts are contrary to the legal presumption of legitimate children.This proof is subject to fairly stringent standards.There are many kinds of objective facts to prove, such as the fact that the husband is infertile and the two parties have no cohabitation.However, the denial of paternity through paternity testing is the most important and convincing evidence, and it is widely used in practice in various countries.

In this case, the two defendants' refusal to identify constituted an obstacle to producing evidence and should be subject to an unfavorable presumption.Obstruction of proof, also known as obstruction of proof, refers to the fact that one party bears the burden of proof, but because the opposite party destroys or refuses to present the only evidence existing in the litigation intentionally or negligently, and cannot prove his own claim, the facts of the case are at odds. Unknown state.Based on the principle of good faith and fairness and the parties' obligation to promote litigation, the party that hinders the production of evidence should bear adverse presumptions. Article 75 of the "Regulations on Evidence" "If there is evidence to prove that one party holds the evidence and refuses to provide it without justified reasons, if the other party claims that the content of the evidence is unfavorable to the evidence holder, the claim can be presumed to be established", that is, the obstruction of evidence. Regulation.

In this case, the plaintiff, Zhang, bears the burden of proof. Since the defendant refused to cooperate, Zhang's paternity test requirements could not be met, and his proof had not yet been completed, which could not convince the judge of the facts he sued.If the plaintiff's claim is dismissed at this time, it is obviously against the principle of good faith.Because the plaintiff's inability to provide evidence in this case was not because the plaintiff did not want to provide evidence, but because the defendant deliberately obstructed it.Based on this, the court of second instance presumed that the facts claimed by the plaintiff were true and correct.But it needs to be clear that there is a difference between a presumptive judgment and a judgment based entirely on facts. If there is other evidence that is sufficient to revoke the judgment in this case (for example, the two defendants agree to conduct a paternity test in the future, and after the test, it is confirmed that Zhang and Lan Lan have a parent-child relationship ), the judgment in this case should be set aside.

tips

Several possible situations in which a paternity test may be encountered in a civil case are as follows:

1. The man or husband requests the court for a paternity test.That is to say, when dealing with a couple's marriage case, the man claimed that the "child (or daughter) born out of wedlock" was not his own. Therefore, he filed an application to the court and asked for a paternity test to confirm it.This kind of situation occurs more often in trial practice, which is mainly determined by the special status of both men and women in bearing children.The purpose or reasons for the man’s application for paternity testing mainly include the following situations: first, he can take the initiative in handling marital disputes; The fee is required to be paid by the woman.The third is that some men think that this can relieve their "heart disease" of whether their children were born to them.

2. The woman asks for a paternity test on her own initiative.When a marriage case is involved, the woman voluntarily proposes that the child born in her marriage was not born to her husband. If the man refuses to approve it, the woman immediately applies for a paternity test.The main reasons are: first, the woman wants to raise the child, and she has certain financial ability;This situation is rare in trial practice.

3. The woman applied to the court to determine a man as the father of the child in a dispute over child support, and thus requested a paternity test.

42. In the case of confirming the biological parents, who bears the burden of proof?
Zhu Bing, Zhu's legal representative, and Chang Mou had a relationship between October and November 2002. During the relationship, they had sex, and they were not married afterwards. On August 10, 11, Zhu Bing gave birth to Zhu, and the birth certificate registered as Ding in the father column. In March 2003, because Zhu Bing suspected that Zhu was born to him and Chang, he sued the court in the name of Zhu as the plaintiff, requesting to confirm the biological father-daughter relationship with Chang.Chang believes that at the time of his relationship with Zhu Bing, Zhu Bing could not conceive due to physiological reasons. Afterwards, he knew that Zhu Bing and Ding were in a relationship, so he did not agree to a paternity test, nor did he agree to Zhu's lawsuit.

During the trial, according to Zhu Bing's application, the court entrusted the S City Blood Center to conduct a paternity test on Zhu, Zhu Bing, and Ding. On November 2006, 11, the Blood Center of S City issued the blood relatives (13) No. 2002 parent-child test report. The report reads: the total parent-child relationship index is 23, and the relative chance of parent-child relationship is 0.0000%. The conclusion is: Ding and Zhu can be ruled out. Someone has a parent-child relationship.The appraisal report has been cross-examined, and both parties have no objection.Zhu asked Chang to pass a paternity test to rule out the parent-child relationship with him. Chang said that Ding and Zhu had no parent-child relationship, and could not confirm that Chang and Zhu had a parent-child relationship. At the same time, he insisted not to conduct a paternity test.

The court of first instance held that Zhu asked to confirm the biological relationship between the two parties on the grounds that his legal representative Zhu Bing and Chang had been in love and had sexual relations, but Zhu failed to provide information on the relationship between Zhu Bing and Chang. Evidence of a birth.According to this judgment, Zhu's request to confirm the biological father-daughter relationship with Chang is not supported.

(End of this chapter)