试论家事调查报告的性质与运用 - 以未成年子女抚养纠纷为例 -

Abstract

With the implementation of the reform of the family trial method and working mechanism and the update of the law on the protection of minors, the court can entrust a third party to carry out a family investigation in a family case, but the problems come: whether the family investigation report is a piece of evidence, if it is, how to cross-examine and so on. Because of the legalization of the types of evidence adopted in the civil procedure law, the family investigation report must be classified as the legal types of evidence before it can be used as evidence. From the perspectives of the investigation methods and the professional level of the contents, the contents of the family investigation report can be classified as the statements of the parties and the testimony of the witnesses, and should not be classified as expert opinions. Take the case of a dispute over child upbringing for example, there are always “better” evidences proving the essential facts affecting the judgment, so the family investigation report doesn’t have to be the evidence, except to a child’s will on the matter of his own upbringing. If the court decided to use the family investigation report as evidence, it should not be publicly cross-examined and should be “only informed, not shown” as appropriate. When not used as evidence, the family investigation report can be used as the basis for psychological counseling, family education guidance and other non-litigation dispute resolution mechanisms, or as a guide for the court to carry out investigations on its own.