Article 39: Where the father or mother files a lawsuit with the people's court requesting denial of parent-child relationship, and has already provided necessary evidence to prove it, but the other party refuses to conduct a paternity test without evidence to the contrary, the people's court may find that the party's claim to deny parent-child relationship is sustained.
Where a parent or an adult child files a lawsuit requesting confirmation of paternity and provides necessary evidence to prove it, but the other party refuses to have a paternity test without evidence to the contrary, the people's court may find that the claim of the party confirming paternity is sustained.
【Purpose of the Article】
This article is about the handling of a party's refusal to take a paternity test. Where a dispute arises between the parties over paternity, and one party refuses to conduct a paternity test without evidence to the contrary, the people's court may make a determination on whether the paternity exists on this basis.
[Interpretation of Provisions]
This provision basically retains the provisions of Article 2 of the Judicial Interpretation (III) of the Marriage Law. Article 2 of the Judicial Interpretation (III) of the Marriage Law provides for the handling of a party's refusal to take a paternity test. The original text reads: Where one of the husband and wife files a lawsuit with the people's court requesting confirmation of the non-existence of the parent-child relationship, and has provided necessary evidence to prove it, and the other party refuses to do a paternity test without evidence to the contrary, the people's court may presume that the claim of the party requesting confirmation of the non-existence of the parent-child relationship is established. Where one party files a lawsuit requesting confirmation of paternity and provides necessary evidence to prove it, and the other party refuses to do a paternity test without evidence to the contrary, the people's court may presume that the claim of the party requesting confirmation of paternity is sustained.
The current laws of the mainland do not provide for the presumption and denial of legitimate children and the adoption system of illegitimate children. However, in practice, there are a large number of cases related to the confirmation and denial of paternity, such as the following common situations: first, a female party in a divorce proceeding submits that the child born to her and her spouse during the marriage relationship does not have a parent-child relationship with her spouse, and then requests the people's court to make a judgment that she should raise the minor child alone; Second, the male party in the divorce proceedings submits that the child born to his spouse during the marriage relationship between the parties is not related to him, and then requests the people's court to rule that he does not bear the obligation to raise the child, and order the woman to compensate him for the child's maintenance expenses since the birth of the child and the mental losses caused to the man; third, a separate lawsuit for confirmation of paternity; Fourth, a separate lawsuit for denial of paternity; Fifth, in inheritance dispute cases, disputes over the confirmation of paternity arising from the confirmation or denial of a natural person's legal heir status. In the above-mentioned types of cases, the essence of the dispute between the parties is the issues involved in this article: first, denying that a child born during the existence of the marriage relationship has a parent-child relationship with his father in the legal sense; The second is that a child born out of wedlock requests confirmation of his or her biological father. If the evidence adduced by the parties on this claim is sufficient to satisfy the conditions for the judge to make a judgment on this issue, there is no need to resort to appraisal. However, it is often encountered in trial practice that one party adduces evidence to prove that its claim is valid, but the other party objects to it, and the evidence adduced by one or both parties is not sufficient for the adjudicator to confirm the matters that need to be adjudicated. In such a case, it is necessary to use scientific methods to determine whether the parties and the children have a parent-child relationship. If the other party refuses to do a paternity test and there is no evidence to the contrary, it becomes an issue that needs to be dealt with in trial practice.
With regard to the above-mentioned problems encountered in trial practice, the people's courts should also weigh the balance between the authenticity of the identity relationship and the stability of the legal relationship when handling specific cases. Article 2 of the Judicial Interpretation of the Marriage Law (III) is a judicial interpretation made by the people's court on the objection to the parent-child relationship on the basis of adhering to the relevant spirit of the Marriage Law in accordance with the needs of trial practice. In view of this, the Civil Code, based on the needs of practice, absorbs this provision, and for the first time makes provisions on the confirmation and denial of parent-child relationship from a legislative perspective, which is also another useful exploration by the people's courts through judicial practice, respecting the rules of adjudication, summarizing experience in a timely manner, and being recognized and absorbed by the legislative department. Article 1073 of the Civil Code stipulates that "if there is an objection to the parent-child relationship and there are legitimate reasons, the father or mother may file a lawsuit with the people's court to request confirmation or denial of the parent-child relationship." Where there is an objection to the parent-child relationship and there is a legitimate reason, the adult child may file a lawsuit with the people's court to request confirmation of the parent-child relationship. "Article 39 of this Interpretation is a further refinement and interpretation of the provisions of Article 1073 of the Civil Code.
Parent-child relationship, also known as parent-child relationship, is the parent and the son is the child. According to the different bases on which parent-child relationships arise, parent-child relationships can be divided into parent-child relationships of natural blood relatives and legally fictitious parent-child relationships. The former is based on the fact of the child's birth, and the latter is based on the recognition of the law, including the adoptive parents, the adoptive child relationship, and the stepparent and stepchild relationship that form the upbringing and education relationship. The system of establishing paternity refers to the system of whether a parent-child relationship is established between children and their parents, and the traditional system of establishing parent-child relationship includes the presumption of paternity, denial, and the adoption of children born out of wedlock. The parent-child relationship in different countries and regions is closely related to national conditions, ethnic habits, economic development, and religious customs. Since the emergence of private ownership and monogamous marriage in history, human beings have attached great importance to the identification of direct blood relations. In the era of underdeveloped medical technology, the principle of "constant motherhood" in Roman law was widely adopted in various countries to confirm the identity of motherhood. Most of the more popular methods of confirming parent-child relationship in ancient China were methods such as "blood dripping blood to recognize relatives", but there was no scientific basis. With the development of society, human beings have gradually begun to use blood group testing and other methods to confirm parent-child relationship, but this method also has a certain degree of limitations, and the measurement results are not accurate. In the early 80s of the 20th century, the mainland began to adopt the increasingly popular human leukocyte antigen detection method in the world. On June 15, 1987, the Supreme People's Court issued Fa (Yan) Fu [1987] No. 20 "Reply on the Issue of Whether the People's Court Can Use Human Leukocyte Antigen for Paternity Testing in Trial Work" (lapsed), while agreeing to the use of this technology for paternity testing, emphasized: "In view of the fact that paternity testing is a serious task related to the personal and property relations of husband and wife, children and others, the legitimate rights and interests of women and children should be protected in cases where paternity testing is required. It is conducive to enhancing unity and preventing contradictions from intensifying, and it is necessary to distinguish between situations and treat them cautiously. Where both parties agree to do a paternity test, it should generally be granted; Where one party requests a paternity test, or where the child is over 3 years old, it should be strictly controlled according to the specific circumstances, and where a paternity test must be done, the ideological work of the parties and relevant personnel should also be done. The people's courts should conduct investigation and research on the confirmation of the parent-child relationship, and make every effort to collect other evidence. The conclusion of the paternity test is only used as one of the evidences to identify the parent-child relationship, and must be corroborated with other evidence in the case, comprehensively analyzed, and a correct judgment be made. It can be seen that the accuracy of the human leukocyte antigen detection method used at this stage for paternity testing is not ideal, so the Supreme People's Court has adopted a cautious attitude and requires the case-handling personnel to combine other evidence and make a comprehensive analysis and judgment when determining the paternity relationship. With the rapid development of science and technology, DNA typing technology has shown high accuracy in confirming paternity. In view of the extremely high accuracy of DNA paternity testing, the accuracy rate of denying paternity can reach almost 100%, and the accuracy rate of affirming paternity can reach 99.99%. In trial practice, in many cases, one of the parties does not cooperate, resulting in the inability to collect sample materials. In this regard, foreign paternity testing laws usually carry out direct compulsory testing and indirect compulsory testing. Taking into account the specific national conditions of the mainland and judicial practice, indirect compulsory appraisal is generally adopted, that is, when the counterpart refuses to cooperate with the court order to conduct the paternity test without justifiable reasons, the court may infer facts unfavorable to the counterpart. At the same time, it should also be noted that paternity testing has an important impact on the maintenance of a family and the continuation of family affection, and the people's courts should be extremely cautious when choosing to apply this method, and should appropriately explain the process and the significance of the conclusion to the parties. If the evidence provided by the parties is sufficient to support their claims, there is no need for a paternity test. In addition, if one party has adduced relevant evidence to give people the belief that its claim may be established, and the other party refutes it, but does not have any evidence to the contrary to support its view, the people's court should consider supporting the party's application for a paternity test. However, if the party who denies the paternity relationship only has suspicions, but there is no relevant evidence to convince that his claim may be established, and only hopes to confirm or deny his suspicions through a paternity test, the court to which the lawsuit is filed should not easily support his application for a paternity test, but should explain to the parties the harm that the paternity test may bring to his or her marriage, family, spouse and children, and if there is really no evidence, the litigation claim should be dismissed.
This provision basically continues the provisions of Article 2 of the Judicial Interpretation (III) of the Marriage Law, which stipulates that if one of the parties does not agree to the paternity test, the method of indirect coercion shall be used to determine the paternity relationship. After a party has adduced evidence to prove its claim to confirm or deny paternity, although it is still insufficient to prove its claim by exhausting its ability to adduce evidence, it applies to prove its claim by way of paternity testing. Where the other party disagrees with its claim, but does not have any evidence to the contrary or the evidence adduced is insufficient to refute the other party's claim, but resolutely disagrees with the paternity test, the people's court may find that the claim of the party proposing to confirm or deny the paternity relationship is established.
This article provides for two types of lawsuits involving paternity: (1) a lawsuit for denial of legitimate children, that is, a lawsuit filed by a husband and wife with a people's court to confirm the non-existence of paternity as provided for in paragraph 1 of this article. There are three main situations: first, in the divorce proceedings, the husband submits that there is no parent-child relationship between himself and his wife during the existence of the marital relationship, and therefore requires the court to rule that after the parties divorce, he does not bear the obligation to raise the children. Some also demanded compensation from their wives for the costs of raising their children out of wedlock as a result of the fraud. The paternity test is usually applied for by the man. Second, during the existence of the marital relationship, the husband and wife request confirmation that they do not have a parent-child relationship with the child. This situation is generally common in cases where the child is born in the wrong hospital or is transferred by others. The paternity test is applied for by both parties. Third, in the divorce proceedings, the parties disputed the right to directly raise the child, and the woman suddenly raised the reason that the husband and the child did not have a parent-child relationship as the reason for raising the child alone. It is possible for both parties to request a paternity test. (2) Litigation for the adoption of a legitimate child, i.e., a lawsuit filed by one of the parties as provided for in paragraph 2 of this Article requesting confirmation of paternity. There are usually two situations: first, the plaintiff files a lawsuit requesting the people's court to confirm that the children of others or minors who have been adopted by social welfare institutions or are vagrant have a parent-child relationship with them. Second, the child asks for confirmation that a person is paternity to him or her (biological father or mother). In both cases, the claimant generally applies for a paternity test.
There are several points that need to be paid attention to in understanding this article: First, if a husband and wife file a lawsuit with the people's court for denial of their legitimate children, they should bear the burden of proof. This is also in line with the principle of "who asserts, who shall provide evidence" in civil litigation, that is, the burden of proof rule that the parties have the responsibility to provide evidence for their own claims.
Second, the degree of evidence provided should be "necessary" and "proven". This is a requirement for the extent to which the assertor of self-interested facts must provide evidence. That is, as long as the evidence provided is sufficient to convince the judge that the evidence can be used to confirm the relevant facts, the purpose of shifting the burden of proof has been achieved.
Third, it should be noted that the subjects of the lawsuit for paternity in paragraph 2 of this article are different. For a lawsuit for denial of paternity, the subject of the lawsuit is the husband or mother, excluding the adult child, which is consistent with Article 1073 of the Civil Code, and the main reasons include: First, the legal paternity should be based on the real blood relationship, so the legal father or mother should be allowed to file a lawsuit to determine the biological father and mother of the child. Second, the stability of the parent-child relationship should be taken into account, and in the case of the social fact that there is already a parent-child relationship between the parties, starting from the principle of protecting the best interests of the child, a person other than the party concerned should be restricted from denying the parent-child relationship, so a third party other than the child's father or mother in the legal sense of the child is not allowed to file a lawsuit as the plaintiff. Third, after parents raise their children as adults, the children shall have the obligation to support, and in order to prevent the occurrence of a situation where the adult child no longer bears the obligation of support to the parents in the original legal sense after denying the parent-child relationship, it is stipulated that the adult child may not file a lawsuit for denial of paternity as a plaintiff, which is consistent with the spirit of Article 1073 of the Civil Code. In the case of a lawsuit for confirmation of paternity, the subject of the lawsuit is the husband or mother and the adult child. When a father files a lawsuit to deny or confirm the parent-child relationship, it mainly refers to the father's disapproval or voluntary recognition of the parent-child relationship. When a mother files a lawsuit to deny or confirm the parent-child relationship, it mainly means that the father is unwilling to approve or although the father does not approve it, and the mother files a lawsuit with the father as the defendant, requesting the court to confirm or deny whether there is a parent-child relationship between the child and the father. In practice, a lawsuit filed by a father or mother for confirmation of paternity also includes the fact that the child is wrongly held, or adopted by a social welfare organization, or separated from the parents, and the parents request confirmation of the existence of a parent-child relationship between themselves and the child. Lawsuits filed by adult children for confirmation of paternity mainly refer to situations in which the biological father or mother is the defendant and request confirmation of paternity, and also includes lawsuits filed by abandoned infants or separated parents with their biological father or mother as the defendant. This article is consistent with the Civil Code, which refers only to adult children and does not include minor children, taking into account the fact that minor children lack civil capacity and litigation capacity, and their mother or father can be used as the plaintiff to confirm the parent-child relationship. In addition to the above-mentioned entities, no other person may file a lawsuit for confirmation or denial of paternity as a plaintiff.
Fourth, neither party has evidence to the contrary and refuses to do a paternity test. The two conditions need to be met at the same time, and if the parties are unable to provide evidence to the contrary, but agree to provide the sample materials and cooperate with the paternity test, the evaluation shall prevail, and this type of situation does not apply. Refusal to conduct a paternity test includes not only refusing to cooperate with the collection of samples necessary for paternity testing, but also refusing to allow minor children to provide samples for paternity testing by taking advantage of the conditions under their direct custody or control over minors, that is, refusing to cooperate with paternity testing in a way that obstructs the normal paternity testing.
Fifth, after the above conditions are met, the people's court may determine whether a parent-child relationship exists on this basis. This is also in line with the principle of the rules of evidence in civil procedure, that is, if there is no evidence or the evidence is insufficient to prove the factual claims of the parties, the party who bears the burden of proof shall bear the adverse consequences. This is also in line with the rule of indirect compulsory identification.
Sixth, it should be noted that both provisions use the word "may" to deny or confirm the existence of a parent-child relationship, and do not use the more in-depth word "shall". This article continues the wording of Article 2 of the Judicial Interpretation (III) of the Marriage Law, and is intended to show that this article only provides a method applicable to the application of evidence provisions by the people's courts to handle such disputes when a party refuses to take a paternity test without evidence. However, it cannot be absolute, because the real blood relationship is not the only element for the establishment of a parent-child relationship, and the stability of the parent-child status relationship, the harmony and stability of marriage and family, and the maximization of the interests of minor children are still the principles that the people's courts should follow when handling cases involving parent-child relationships. A mechanical understanding of this article may lead the adjudicator to blindly pursue the truth of blood relationship, while ignoring the family affection formed by the parties in their perennial common life, which will damage the existing family model and real-life interests of the parties, so the adjudicator should try his best to avoid such a negative adjudication effect.
[Issues that should be paid attention to in trial practice]
1. It is necessary to accurately grasp the evidentiary determination in a lawsuit confirming or denying parent-child relationship
The confirmation or denial of parent-child relationship not only involves the creation and elimination of a series of rights and obligations for a family, parents and children, but also a major change in personal relationships, which directly affects family harmony and social harmony. When reviewing evidence in such cases, the people's courts must be extremely cautious and strictly follow the rules of evidence to review and confirm the evidence submitted by the parties. For a party initiating a paternity lawsuit, the evidence provided may not be sufficient, but it must be able to form a reasonable chain of evidence to prove that there may or may not be a parent-child relationship between the parties. His application for paternity testing is only a supplement (reinforcement) to the evidence adduced, and not the only evidence for his claim. The relationship between the evidence adduced and the facts to be proved can be grasped from two aspects: first, whether the evidence adduced forms a reasonable chain to convince the adjudicator that such facts may indeed exist; Second, according to the rules of evidence in civil procedure, although the evidence adduced is insufficient, it is sufficient to meet the conditions for shifting the burden of proof. Of course, the so-called convincing the adjudicator should not be understood as the subjective assumption of a certain adjudicator, but refers to the conclusion reached by the adjudicator after following the modern principle of free testimony, that is, in accordance with legal procedures, comprehensively and objectively reviewing the evidence, in accordance with the provisions of the law, following the judge's professional ethics, and using logical reasoning and daily life experience to make a comprehensive judgment on the evidence. [7] Generally speaking, a request for confirmation or denial of paternity should be supported by sufficient evidence. Where a request is made to confirm paternity, a paternity test report and other evidence that can prove the blood relationship shall be provided. Requests for denial of paternity shall generally provide evidence to prove the existence of any of the following circumstances: First, during the period of conception of the wife, there is clear evidence to prove that the parties did not live together, including proof of work in a different place, proof of travel, witness testimony, and other comprehensive evidence that can form a complete chain of evidence. The second is that the husband has physical defects or is infertile and infertile, including time, space, and physiology. It can be comprehensively judged through relevant evidence such as hospital medical certificates. The third is that the child is related to other people by blood, including evidence such as the paternity test report of the child and other people, which can prove that the child and other people have a biological parent-child relationship.
In addition, in the lawsuit for confirmation or denial of paternity determined by this article, the paternity test report is an important piece of evidence, which plays an important role in the determination of paternity and the formation of the judge's free will. If both parties cooperate and provide samples for paternity testing, the paternity test report basically plays a decisive role in the determination of paternity. However, in practice, in many cases, the opposing party does not cooperate in providing the sample materials, and the court should not compel the party to conduct an appraisal, in which case the paternity test report is not used as evidence for the verdict in the case trial, and the presumption can be made in accordance with the provisions of this article.
2. It is necessary to accurately grasp the embodiment of the principle of maximizing the interests of children in the trial of such cases
The principle of the best interests of the child is a fundamental principle established by the Convention on the Rights of the Child. The so-called principle of the best interests of the child contains two connotations: one is that the child should be regarded as an individual with rights, and the other is that the interests of the child must take precedence over the interests of adult society, that is, all matters involving children must be based on the best interests of the child and the development of the child as the starting point. The "principle of the best interests of the child" established in the above-mentioned articles of the Convention is considered to be the principle that all countries in the world must abide by when dealing with matters concerning children, and has been widely recognized and adopted in the legislation of various countries on parent-child relations, thus driving the development of kinship legislation in various countries from "parent-oriented" to "child-oriented".
In addition to the pursuit of true blood relations, the stability of the parent-child relationship and the impact of the harmony and stability of marriage and family on the healthy growth of minors are all factors to be considered in the trial of such cases. In real life, inconsistencies between blood and legal paternity often occur, and in many cases, the biological father files a lawsuit for the claim of an illegitimate child. Lawsuits for the claim of illegitimate children are based on the urgent need to raise a minor child, and the mother of the child claims that the child's biological father is jointly responsible for the maintenance of the child on behalf of the child, and the parents of the minor child claim that they have a parent-child relationship with the child adopted by another person, or the parents who have abandoned their own minor child to confirm the paternity. Whether or not the claims of the party who filed a lawsuit for the claim of an illegitimate child are supported cannot simply be held that the party has provided the necessary evidence and the other party has refused to take a paternity test without evidence, and the request of the party advocating confirmation of paternity is established based on the general application of the provisions of this article. Based on the specific circumstances of the case, a decision should be made on whether it is necessary to presume the establishment of paternity and support the plaintiff's claim. For minors who have an urgent need to raise them, the provisions of paragraph 2 of this article should be decisively applied, and a judgment should be made to confirm the parent-child relationship, so as to protect the lawful rights and interests of the minors. Where the conditions of paragraph 2 of this article are met, the people's court shall, if the conditions of paragraph 2 of this article are met, weigh the impact of supporting the child's claim on the minor child, whether the child has been adopted by the stepfather through legal procedures, whether the child is suitable to live with the mother because of the young age, and whether the party claiming to adopt the illegitimate child has been sentenced for abuse or abandonment of the child. All these should be factors for the people's court to comprehensively consider whether to apply this article to support its claim. This is to firmly grasp the principle of maximizing the interests of children, and to always consider a principle of balancing the interests of all parties in the trial of marriage and family cases involving parent-child relationships. At the same time, it is also necessary to consider that the Civil Code has been implemented, which stipulates that minors over the age of 8 are persons with limited civil capacity, and may carry out civil activities appropriate to their age and intelligence, and other civil activities shall be represented by their legal representatives. For minors over the age of 8, they cannot simply be forced to do a paternity test, but should fully consider their understanding of the matter, and do a good job through their guardians to avoid the occurrence of extreme events.
3. It is necessary to properly handle the issue of the return of child support after the parent-child relationship is denied
After the parent-child relationship is denied, the child loses the qualification to be born in wedlock, and the father has no legal obligation to support the child in the original legal sense, and the custody relationship between him and the child before the denial is a fraudulent custody relationship. The so-called fraudulent custody relationship refers to the act of the woman deliberately concealing the fact that her children were not born to the man during the marriage relationship or even after the divorce, so that the husband mistakenly treats the children as his biological children and raises them. With regard to the identification and handling of fraudulent maintenance relationships, the legislation of various countries recognizes that the defrauded person has the right to claim the return of alimony paid during the existence of the marital relationship. There are theoretically different views on the nature of this claim, including the theory of unjust enrichment, the theory of management without cause, and the theory of tort. Mainland law also does not explicitly stipulate this issue. In judicial practice, there are different ways to deal with it, and through the different judgments of local people's courts, it can be found that there are the following understandings: it is determined that the act of support is carried out based on a major misunderstanding, and the alimony is returned, and at the same time compensation for moral damages is made; It is determined that the plaintiff's personality interests have been infringed, and the plaintiff shall bear tort liability for compensation, return child support, and compensate for moral damages; If it is determined that the act of maintenance is not motivated by true intentions, it shall be invalid, and the maintenance fee shall be returned and compensation for moral damages shall be made. Some people believe that it is more reasonable to deal with fraudulent maintenance based on the theory of tort liability law, mainly because according to the relevant provisions of tort liability in mainland China, infringement of civil rights and interests should bear tort liability. Civil rights and interests include civil rights and interests. As far as fraudulent maintenance is concerned, it not only damages the personality rights of the person without a maintenance obligor, especially the right to reputation, but also actually causes damage to the economic interests of the person without a maintenance obligation, and in addition, it meets the constitutive elements of tort liability, that is, the actor is at fault, the damage has occurred, and there is a causal relationship between the two, and it also provides legal support for the non-maintenance obligor to claim compensation for moral damages. In this regard, we are inclined to believe that in the case of fraudulent custody relationships, since the defrauded person has no maintenance obligation in the first place, the maintenance expenses already paid by the defrauded party constitute unjust enrichment for the child's biological parents, so they can exercise the right to claim unjust enrichment and request the return of the maintenance expenses already paid. Where the requirements for compensation for moral damages are met at the same time, their request for compensation for moral damages may be supported. When determining the amount of alimony to be returned, the plaintiff shall bear the burden of proof on the payment of alimony. Where there is truly no evidence to be adduced, a judgment may be made on the basis of the actual needs of the children, the economic income of both parties during the existence of the marital relationship, the division of joint property at the time of divorce, and the actual living standards of the locality. Of course, since such cases not only involve property relations, but also personal relationships, and the defrauded person not only pays child support, but also has emotional investment, such cases should still be based on mediation and strive for a settlement through negotiation between the two parties.