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Chapter 13 Questions and Answers about Marriage and Inheritance (12)
Zhu refused to accept the judgment of the first instance and filed an appeal.After the trial of the second instance, it is believed that whether there is a parent-child relationship between the parties in this case should be judged based on the evidence related to the case, and the confirmation and acceptance of evidence should follow the rules of evidence in civil proceedings, and determine the burden of proof of the parties in strict accordance with the logic of proof , and make reasonable judgments about the evidence.The appellant Zhu in this case insisted that there was a parent-child relationship between him and the appellee Chang even though his birth certificate clearly recorded that his biological father was Ding, and Zhu had the burden of proof for this.In order to prove his claim, Zhu denied the parent-child relationship between him and Ding, and provided evidence proving the fact that his mother Zhu Bing and Chang had lived together 10 months before his birth. The fact that Zhu Bing had a sexual relationship.So far, it should be considered that Zhu's proof has been completed, and he no longer bears the burden of further proof.Unless Chang can prove that Zhu was not born to Zhu Bing, or prove that there is reasonable doubt about Zhu's claim, it should be presumed that there is a parent-child relationship between Zhu and Chang.Since Chang cannot provide evidence to prove that he only has a cohabitation relationship with Zhu Bing and has no parent-child relationship with Zhu, according to the rules of evidence, Chang should bear the consequences of not being able to prove.The judgment revoked the original judgment and confirmed that the appellee Chang and the appellant Zhu had a biological father-daughter relationship.

After the case was concluded, Chang refused to accept the case and applied for retrial.After mediation, both parties agreed to conduct a paternity test.According to the appraisal conclusion, there is a parent-child relationship between Chang and Zhu.

Analysis according to law
Paternity testing refers to the use of medical and anthropological theories and techniques to determine whether there is a biological blood relationship between controversial parents and children.Paternity testing is usually carried out according to the following aspects: gestation period, fertility, physical genetic characteristics and blood genetic characteristics, of which the first three methods are auxiliary methods.The early blood type testing methods can only use negative methods, and the proportion depends on the number of blood group systems measured. The limitation of its accuracy makes it difficult for paternity testing methods to be widely used in court.In recent years, with the rapid development of DNA analysis technology, the identification conclusion has successfully achieved a leap from simple negative to scientific affirmation. More than 120 countries and regions in the world have used DNA technology to handle cases.

Generally speaking, the plaintiff should bear the burden of proof for its claims, while the defendant only bears the burden of proof for the facts on which it refutes the plaintiff's claims, which is generally in line with the rule of thumb and the principle of fairness.However, in parent-child cases, there are some particularities in the process of producing evidence: first, the determination of parent-child relationship is the prerequisite for handling parent-child disputes, and the determination of parent-child relationship cannot be completed solely by one party’s evidence; second, the parent-child test needs to collect Therefore, in civil litigation, the method of compulsory identification cannot usually be used to obtain evidence; thirdly, according to the relevant regulations of the Supreme Court, even if the parent-child identification method is adopted, the court still has to integrate the facts of the whole case Handle with caution.A variety of factors make the issue of proof in parent-child cases complex.In this case, the key issue is how to determine the parent-child relationship fairly and reasonably if the person being appraised is unwilling to cooperate with the appraisal when the probative force of other evidence has reached a high degree of probability.

In this case, if the appraisal applicant does not get the cooperation of the respondent, it is impossible to obtain conclusive evidence proving the existence of the parent-child relationship objectively. In this case, how should the parent-child relationship be determined?If the general rule of burden of proof allocation is applied and the judgment is made mechanically, it will obviously result in unfair judgment.Therefore, this case belongs to the distribution of the burden of proof under special circumstances.The author believes that if the facts cannot be ascertained due to the reasons of the parties, the judge should reasonably allocate the burden of proof among the parties in accordance with the principle of fairness, which is the same in ordinary cases and cases related to personal relationships.In fact, the particularity of the application of the rules of evidence in the personal field is what we need to focus on.Based on this case, we propose several basic principles:

First of all, the principle of whoever advocates should provide evidence should be implemented.Usually, neither party has the obligation to provide evidence to support the other party's claim, which is the basic principle of the adversarial litigation model.In parental dispute cases, according to the law, children born during the marriage relationship are legitimate children.Therefore, the parent-child relationship of legitimate children is a legal presumption of fact.If the applicant wants to deny the parent-child relationship presumed by law, or request to affirm the parent-child relationship of the illegitimate child, the applicant should first bear the main burden of proof.

Secondly, the deficiencies of statute law should be made up with the principles of fairness and good faith.In the distribution of the burden of proof, the inversion of the burden of proof is directly stipulated by law and is limited.Real life is undoubtedly rich and complex.A single and either-or allocation of the burden of proof is not conducive to the realization of the fairness and justice of the case trial.In specific cases, judges should have the right to exercise discretion based on the specific circumstances of the case, and in cases where the inversion of the burden of proof cannot be applied, and where the pure principle of who claims who to prove is applied obviously violates the principle of fairness , reasonably distribute the burden of proof among the parties.It is specifically reflected in parental rights cases. Although the applicant cannot provide the scientific report of the paternity test, the applicant has fulfilled all the burden of proof and has reached the The standard of high probability is objectively due to the reason of the respondent that it cannot be proved by scientific appraisal, and there is no reasonable and sufficient reason for the respondent's refusal of the appraisal, the respondent shall be judged to bear the burden of proof in the sense of the result.

Third, the simple self-admission principle should be excluded.During the litigation process, if one party expressly acknowledges the facts of the case stated by the other party, the other party does not need to provide evidence, except for those involving identity relationships.Obviously, the principle of self-admission must have the basic facts of the case as the basis for judgment in cases involving identity relationships. Changes in the parent-child relationship not only involve the parties involved, but may also affect the property rights and spiritual interests of those outside the case, so it should be handled with caution.It should be pointed out that a further distinction needs to be made to the admitted facts: facts in the sense of behavior, facts in the sense of results, and causal relations.The author believes that the limitations of the above rules of evidence should be limited to facts and causality in the sense of results.Specifically, in this case, even if the respondent Chang admits that he has a parent-child relationship with Zhu, or admits that his cohabitation with Zhu Bing has a causal relationship with Zhu's birth, the applicant's burden of proof cannot be exempted; however, Since Chang admitted that he and Zhu Bing lived together around November 2002, Zhu Bing can be exempted from the burden of proof for this fact.The significance of making such a distinction between the facts of the case is that while paying attention to preventing the parties from using paternity test cases to evade the provisions of national laws, we also leave appropriate space for the judge to determine the facts.If all the facts admitted by the respondent are excluded from the judge's field of vision indiscriminately, it will obviously increase the difficulty of finding the facts of the case, unreasonably narrow the judge's discretion according to the circumstances of the case, and cause the parties in many cases to legally Rights and interests are not properly protected.

Fourth, the judgment on the capacity of evidence should meet the standard of high probability.In the absence of a paternity test conclusion, there is no unified understanding of how to make a reasonable judgment based on the specific circumstances of the case.According to the characteristics of the hierarchy of proof standards, for identity relationship cases, in the absence of expert conclusions, the proof standard should be raised moderately, fully reaching the standard of high probability, and avoiding the simple use of the preponderance of evidence rule.This requirement is reflected in the process of admissibility of evidence. Compared with ordinary cases, the judge will appropriately increase the severity of the applicant's evidence review, and pay more attention to the respondent's rebuttal evidence, so as to comprehensively examine the evidence of the whole case. evidentiary capacity.

Based on all the facts of this case, after the applicant has provided a comprehensive proof, especially after the outsider Ding has been excluded, the applicant’s proof has been completed. After the respondent admits the fact of cohabitation, and can match the child’s birth time After confirmation, the judge's judgment that the parent-child relationship is established is completely correct.But the problem still exists. According to statistical analysis, under the high probability standard, the possibility of such a judgment being overturned is not high, but the possibility of parent-child relationship still exists. How to treat this problem?In this regard, the author believes that it should be clarified whether the failure to identify is attributable to the court.If the paternity test is not performed due to the parties concerned, even if the determination of the parent-child relationship is overturned in the subsequent trial, the original trial judge should not bear any responsibility, so the extra expenses caused by both parties in the trial should also be rejected by the original judge. The appraisal party bears, regardless of the conclusion of the appraisal.

tips

The content of the paternity test report generally includes: the test method and main operation process; the test results; the probability of parent-child relationship or the accuracy rate of determining the parent-child relationship.According to the test results, the appraisal agency will generally provide the client with an appraisal opinion in the report, that is, whether there is a parent-child relationship between the appraised persons, and in some cases, the parent-child relationship may not be ruled out.Accurate paternity test results are the main evidence for judging whether there is a parent-child relationship between the identified persons.The paternity test report, as one of the litigation evidences, can provide scientific basis for the mediation and judgment of criminal and civil cases, so that the legitimate rights and interests of the testees can be protected.

43. If one party is unwilling to cooperate in the paternity test, who should bear the burden of proof?

Guo X male and Huang X female registered their marriage in 2003 and gave birth to a son in December 2004. In April 12, the court mediated the divorce, and the child lived with Huang, and Guo paid 2006 yuan a month for child support. At the end of 4, the child who had reached the age of 120 asked Guo XX man for an increase in child support, but Guo XX man claimed that the child had already been born when Huang XX woman married him for a short time, and the time did not match. On the grounds that the child is not his own paternity, he sued the court to request a paternity test.However, Ms. Huang is unwilling to cooperate with the paternity test. In this case, who should bear the burden of proof and bear the consequences of losing the lawsuit?
Analysis according to law
Some people think that Huang should bear the consequences of losing the lawsuit.The reason is that from Guo’s statement, there is a need for a paternity test. If Huang insists on not cooperating with the paternity test, she should bear the consequences of not being able to provide evidence.Combined with the time when the child was born, the court should presume that the claim that Huang's son is not Guo's parent is valid, and Guo should no longer fulfill the obligation of raising the child, and Huang will independently raise the child.

Others believed that Guo Mouman's claim should be dismissed.The reason is that from the perspective of the legal basis for paternity testing, only the Supreme People’s Court’s “Reply on Whether the People’s Courts Can Use Human Leukocyte Antigens for Paternity Testing in Trial Work” (hereinafter referred to as the “Reply”) was issued by the Supreme People’s Court on June 1987, 6. , which stipulates: "Paternity testing is a serious job, and it should be treated with caution based on the protection of the legal rights and interests of women and children, the promotion of unity and the prevention of intensification of conflicts." It also emphasizes two points, one is that both men and women apply, Generally, it should be allowed; second, if only one party applies, or if the child is over 15 years old, it should be strictly controlled. For those who must make a paternity test, the ideological work of both parties should also be done well.

The author believes that, first of all, according to the provisions of the "Reply", if this case belongs to the situation of one party's application, it must meet the condition of "must take a paternity test".In this case, only Mr. Guo only pointed out that the time of giving birth to the child was inconsistent, but failed to mention the fact that Mrs. Huang had a cohabitation relationship with others, or that the child's appearance and characteristics were very different from those of the parents. Meet the "must" conditions for paternity testing.However, it is not a "must" condition to deny the parent-child relationship only on the grounds that the time of giving birth to the child does not match, and there is no reason for Huang's female partner to cooperate in the paternity test.

Secondly, in accordance with the spirit of the "Reply", in order to stabilize social relations, social consequences and the interests of children should also be taken into consideration, and to prevent the abuse of the paternity test right, there should be a time limit for the lawsuit for confirming paternity.If the statute of limitations is exceeded, it should still be regarded as not meeting the conditions of "must do paternity test".There are regulations in foreign legislation, and the longest period is only 5 years, and the limitation period in our country should not be too long.

Guo Mouman divorced when the child was less than 3 years old, did not submit a paternity test, and admitted the parent-child relationship, but filed it again after the divorce, which should be regarded as having lost the right to deny.

tips

At present, the test methods for paternity testing at home and abroad mainly include: (1) blood type test, that is, the test of genetic polymorphism markers of various components in blood.Mainly include: human leukocyte antigen typing, red blood cell antigen typing, red blood cell enzyme type and serotype; (2) DNA polymorphism test.It mainly includes DNA fingerprint analysis technology and polymerase chain reaction technology (PCR), and the applied samples can be blood, semen, or tissue.

inherit
44. What should I do if I have any objection to the previous notarial certificate of inheritance right?
Zhang's family of five lived together in a private house of their ancestral home for 10 years due to living difficulties. In 2004, the house was going to be demolished. According to the negotiation with the demolition unit, the demolition unit will supply Zhang's family with a new house in another place.At this time, Zhang's aunt took out a notarial certificate of inheritance in 1985, which stated that Zhang's mother had given up the inheritance.But Zhang's mother thought that she had never had a copy of the notarial certificate, and raised objections to the notarial certificate.

Analysis according to law
Inheritance notarization refers to the activities of notarization agencies to prove the authenticity and legality of the heir's inheritance behavior according to law.Inheritance notarization can stabilize property relations and family relations, properly handle inheritance matters, ensure the implementation of the "Inheritance Law", protect the legitimate rights and interests of citizens in property, prevent inheritance disputes, stop illegal acts in inheritance activities, reduce lawsuits, and protect families. The stability and unity of a harmonious society is of great significance.

According to regulations, the notarization of inheritance is under the jurisdiction of the notary office in the place where the heir resides or the estate is located, and the inheritance involving real estate is under the jurisdiction of the notary office in the place where the real estate is located.When the inherited property is not located in one place, it shall be under the jurisdiction of the notary office where the main property is located; when the heir is not in one place, the jurisdiction shall be determined according to the circumstances of the property. A notary office governs.

The effect of a notarial certificate is very strong, and it can be directly used as evidence in law, and it is very difficult to overturn it. Article 75 of the "Civil Proceedings Opinion" stipulates: "The parties do not need to provide evidence for the following facts: ... (5) Facts that have been proved by valid notarial certificates."

For this case, if you want to overturn this notarization, you can only consider the first paragraph of Article 25 of my country's "Inheritance Law": "After the inheritance begins, if the heir renounces the inheritance, he should make a statement of renunciation before the estate is disposed of. If there is no indication, it is deemed to accept the inheritance." And Article 1 of the "Provisional Regulations on Notarization" stipulates: "If the notary office or its judicial administrative agency at the same level or the judicial administrative agency at the higher level finds that the notarial documents that have been issued are inappropriate or wrong , should be revoked."

According to the above stipulations, the renunciation of the right of inheritance should be made "after the inheritance begins and before the estate is disposed of", so does the notarization performed in 1985 meet this condition?If not, you can apply to the notary office or other authority to revoke the document.

tips

The heirs should jointly apply to the notary office with jurisdiction.If it is difficult to apply jointly, the heir may entrust other heirs or others to apply on his behalf.A party with no capacity for civil conduct or limited capacity for civil conduct shall bid by his legal representative or an agent entrusted by the legal representative.The legal representative generally cannot act on behalf of the principal to waive the right of inheritance or bequest.

(End of this chapter)