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Studies to determine the paternity of illegitimate children

Author: LiZhi
Tutor: ZhuFan
School: Southwest University of Political Science
Course: Legal
Keywords: parent child relationship illegitimate children paternity test presumption
CLC: D923.9
Type: Master's thesis
Year: 2011
Downloads: 173
Quote: 0
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Abstract


The essay tries to analyze the identity of illegitimate child by way of checking Chen’s suit against Song to determine the custody. Special attention and detailed exposition has been given to whether the court is legitimate to enforce a party to do the paternity test and whether the court can praesumptio the existence of real paternity. in the cases concerning about parentage.In recent years, there arises more and more cases concerning about the identity of children’s father due to the unmarried sexual relationship. Whether is it legitimate to enforce the man to do the paternity test and how we can affirm the existence of the parentage when man refuses to do so make differences to both children and their parents. And it is also of great importance to the maintenance of the well-being of family as well as the stability of the society. In terms of law, the means of affirming the identity of parentage and the formation of the distribution system of the burden of proof in suits are of significance to the protection of the rights of illegitimate children as well as the rights of both parties in Cohabitation without legal marriage. The essay attempts to expound the focus of disputes by way of proceeding from the current situation of Chinese legal system and judicial practice, and of combining the extraterritorial regulations related concerning about the parentage casesAs to the focus of dispute concerning about the enforcement of paternity test, the writer don’t think it proper to resort to paternity test, for it is a infringement to man’s personal right, which is more serious than keeping the illegitimate children in dark. Parent child relationship is different from other kinds of social relations, and it plays a significant part in safeguarding the peace and maintaining family harmony. Once being enforced to do the paternity test, one party will be greatly infringed in terms of personal rights. Moreover, the spirit of the constitution and regulations of other laws willed be greatly impaired, and the stability of society and family will be crushed. Therefore, when one party refuses to be inspected, the court is supposed to impose fines but not to resort to mandatory identification.As to the presumption of parent child relationship, the writer holds that, in lawsuits one party is much inclined to present favorable evidence to the court to win a favorable edge, and not inclined to present the unfavorable evidences. That is true because of man’s instinct for rejecting the harmful. When one party who holds some kinds of evidence which is irreplaceable and key to the lawsuit is not inclined to present it to the court, the judge can make the unfavorable presumption. When it comes to the case in this paper, in such a society advanced in technology, paternity test is not harmful to people’s health and it only needs man’s blood or body fluid or even skin tissue. If the defendant can provide his gene sample but he refuses to provide it without proper excuse, it is a clue that the evidence is unfavorable to the party. Therefore, the judge can make the unfavorable presumption to him according to Article 75 in <The Regulations relating to the Civil Evidence System> and conducts the real existence of parent child relationship.

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CLC: > Political, legal > Legal > Chinese law > Marriage Law
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