婚生否认之诉原告资格的立法完善和规范适用

对于婚生否认之诉的原告,目前我国法采取了明确列举的方式,所规定的原告范围较窄。当其他可能的原告起诉时,法院或严格适用法律规范,或扩大原告范围,产生了矛盾裁判。立法应当对能够成立诉权并启动司法审判的适格原告作出周全选择和判断。基于身份权的专属性及国家意欲保护的权利和价值,亲子关系的主体,即父母、子女均有婚生否认之诉原告资格;生父仅在婚生亲子关系不利于子女最佳利益或损害公共利益时,才附条件地具有婚生否认之诉原告资格;父死亡后的继承人因无专属身份关系以及身份公益优位于财产私益的法理,不具有婚生否认之诉原告资格。在立法作出周全选择后,司法实践应当准确把握婚生否认之诉属于形成之诉的本质及立法的文义和目的,遵循形成之诉原告的法定性和封闭性,不得扩大原告范围。

The Legislative Perfection and the Application of Norms on the Plaintiff’s Qualification for A Lawsuit to Deny the Kinship between A Parent and the Legitimate Child

The current legislation has adopted the mode of enumerating eligible plaintiffs for a lawsuit to deny the kinship between a parent and the legitimate child,but the range is relatively narrow.When other possible plaintiff files a lawsuit,the court either strictly follows the law or expands the scope of plaintiffs,which causes harms to judicial unity and authority such as conflicted judgments.The legislation should choose and determine eligible plaintiffs who can enjoy the right to sue and initiate judicial proceedings.On basis of the exclusiveness of the identity right,the rights and values that China intends to protect,the subjects of the parent-child relationship,i.e.both parents and the child are eligible plaintiffs for a lawsuit to deny the kinship between a parent and the legitimate child.The natural father can be qualified as a plaintiff for a lawsuit to deny the kinship between a parent and the legitimate child only when the legitimate parent-child relationship is not in the best interest of the child or impairs public interests.An inheritor after the father’s death is not qualified as a plaintiff for such a lawsuit because of lack of exclusive identify relationship and the legal doctrine that the public interest concerning the identity prevails over the private interest concerning property.After the legislation makes its choice,the judiciary should accurately grasp the essential nature of the lawsuit to deny the kinship between a parent and the legitimate child that it is an action of formation,the literary meaning and purpose of the legislation,follow the principle that plaintiffs of an action of formation are determined by the law and their scope can’t be expanded,so as to realize the effective connection between the legislative improvement and normative application in justice.