Research On The Protection Of Children’s Rights In Litigation Divorce In China

Children are the hope and future of our country.The protection of children’s rights is an important indicator to measure the level of civilization and the rule of law in a country.Family is the first and most ideal place for children to live.Parents are the best person to raise,care for and protect children.However,the divorce of parents has changed the family living environment of children,which is directly manifested in the change of the way of raising,guardianship and communicating with parents.Litigation divorce is an important way for both husband and wife to dissolve their marriage in our country.The handling of children’s upbringing,guardianship and visits in divorce litigation is directly related to the healthy growth of children’s physical and mental health.However,the reality is that the current legislation and judicial practice in our country still have some problems which are contrary to the principle of the best interests of children and are not conducive to the realization and protection of children’s rights.At present,"Marriage and Family Compilation of the Civil Code of China" is being compiled.This paper takes "Research on the Protection of Children’s Rights in Litigation Divorce" as the topic,and takes the protection of children’s right of dependency,custody and visitation in litigation divorce as the research object,investigates the legal protection of children’s rights,and puts forward some suggestions to improve the protection of children’s rights in litigation divorce.This research has important theoretical significance and practical application value.In addition to the introduction,there are six chapters and more than 200,000 words in this paper.The first two chapters are about the general theory of children’s rights and the necessity and principles of protecting children’s rights in litigation divorce.On this basis,the third,fourth and fifth chapters respectively study children’s rights of dependency,custody and visitation.The sixth chapter is about the procedural protection of children’s rights in litigation divorce.Chapter 1 is "the basic theory of children’s rights".This chapter provides theoretical support for the later research on children’s rights.The concept of "children" is a historical category.The historical status of children has undergone a development process from beingneglected,discovered to being the subject of rights.The legitimacy of children’s rights lies mainly in the theoretical support of human rights theory,interest theory and social construction theory outside the territory,and people-oriented and benevolent thought within the territory.Human rights have universality and particularity.As an individual human being,children have different physical and mental characteristics from adults,so they must enjoy basic human rights and special rights of children.At the same time,the legitimacy of children’s rights also depends on the existence of their own interests,rather than on the individual’s ability to make independent choices.The social constructivist view of children holds that "what is a child" depends on people’s imagination and construction,and has the effect of "I see,I build",which provides a new cognitive basis for the theoretical research and protection of children’s rights.The culture of kindness fostered by the people-oriented and benevolent thoughts in Chinese civilization laid the foundation for the protection of children’s rights and the reference of foreign civilization.Children’s rights refer to the privileged rights that are recognized by social morality,law or custom,which highlight children’s own characteristics and legitimate interests and enjoy as an independent individual with human rights attributes.Chapter 2 is "divorce in litigation and the protection of children’s rights".This chapter mainly discusses the impact of divorce on children’s family rights,the relationship between litigation divorce and child rights protection,and the basic principles of child rights protection in litigation divorce.Litigation divorce is a relief procedure and way for the parties to realize their freedom of divorce and resolve their differences.The divorce of parents has an important impact on children’s right of dependency and custody.The divorce of parents leads to the change of child rearing from the former two-lineage rearing to the mode of one-sided direct rearing of parents and the other paying the maintenance fee;while child custody is changed from the former mutual guardianship of parents to the one-sided guardianship;at the same time,the way of communication between parents and children has changed,from the former common life and close contact to the regular visitation of one parent who do not directly raise their children.Litigation divorce is an important way for both men and women to dissolve their marriage.It is precisely because divorce has such a profound impact on children that it requires parents to properly handle children’s affairs and protect children’s rights in divorce proceedings,otherwise the freedom of divorce will be limited.Protecting children’s rights in divorce proceedings must be based on the principle of the best interests of children,throughestablishing the principle of the best interests of children and specific considerations,strengthening the judicial supervision responsibilities of judges and strengthening the sense of parental responsibility.Chapter 3 is "the study of the children’s custody in divorce proceedings in China".This chapter focuses on the issue of children’s custody Through investigating and analyzing the divorce judgment documents of three county people’s courts,this paper summarizes the achievements of children’s custody in litigation divorce,and points out the main problems:father is in a comparative dominant position in determining the right owner;there are more cases of parents raising children separately;fewer cases of soliciting opinions from children themselves;more discretion of judges;and no giving them.The ratio of payment of maintenance fee is higher,and the amount of payment of maintenance fee is lower.In view of the above problems,on the basis of drawing lessons from foreign legislative experience and combining with China’s actual national conditions,the following suggestions are put forward:first,legislation and judicial practice should adhere to the idea of children-oriented,prohibit the right owner from abandoning child support,fully respect children’s opinions and adhere to the principle of non-separation of hands and fees;second,strengthen judges in determining children’s the right owner;The third is to improve the system of child maintenance fee in our country.It is suggested that the income ratio rule should be applied first,the collection base of child maintenance fee should be enlarged,the reporting system of parents’ property should be established,and the guarantee system of child maintenance fee should be established considering the standard of living maintenance and the minimum living expenses.Chapter 4 is "Research on the Guardianship of Children in China’s Litigation Divorce".This chapter focuses on the issue of children’s custody.Judicial practice of children’s guardianship in divorce litigation in China shows that children’s guardianship is seldom involved in divorce litigation,and there is no clear guardian of children.This leads to the ambiguity of the way parents exercise custody of children after divorce and the ambiguity of their guardianship duties.At the same time,there is also the lack of custody of children’s property.On the basis of investigating and analyzing the relevant foreign legislation and the legislative suggestions put forward by the relevant scholars in China,the following suggestions are put forward: first,the marriage law should clarify the child guardianship system and raise the parents’ awareness of guardianship responsibility;second,the divorced parents should improve the guardianship mode of children,adopt both unilateral guardianshipand joint guardianship,and apply the agreement and statutory concurrent,and the agreement is excellent.The legal guardianship is based on the principle of common guardianship,supplemented by unilateral guardianship;the content of common guardianship is that the right owner is responsible for the daily life,residence assignment,education and punishment of the children,while the decision-making power,property management power and agency power of other important matters are exercised jointly by both parents;and the third is to improve the property guardianship of divorced parents for children,and to put forward a definite proposal.Establish a reporting system for children’s property,which includes making lists of children’s property and regularly reporting the status of children’s property.At the same time,parents are encouraged to take joint custody of children’s property.Chapter 5 is "the study of children’s visitation rights in divorce proceedings in China".This chapter focuses on children’s visitation rights,On the basis of investigating and analyzing the judicial practice of the right of visitation in divorce lawsuit in China,this paper summarizes and analyses the problems and crux of the rights of visitation in divorce lawsuit in China.The problems is the low application rate of visitation right,unclear visiting time,vagueness of visiting mode and so on.The crux of the problem is that there are some defects in legislation,such as neglecting the obligation attribute of visitation right,denying children’s subject status of visiting and the primary rules of legislation,incorrect concepts of divorced parents,and less intervention by judges.In view of the above shortcomings,the following suggestions are put forward: first,the legislator need improve the existing legal system,including defining the attributes of rights and obligations of visitation rights,clarifying the status of children’s visiting subject,specifying the time and manner of visitation,suggesting replacing the right of visitation with the right of meeting communication;judges need strengthen the intervention and supervision,including dealing with the problems of visitation and maintenance together,determining the time and modes of visitation;parents need improve ideological and cognitive level,including correctly understanding the importance of visiting for children,and reasonably agree on the time and mode of visiting.Chapter 6 is "research on procedural guarantee of children’s rights in divorce proceedings in China".Procedural justice is the premise and foundation of substantive justice.According to the principle of procedural symmetry,the special status of children in divorce proceedings determines the need to build special procedures.From a worldwide perspective,many countries and regions have developed special family procedures for family disputes,including special procedures for the protection of children’s rights.In respect of procedural protection of children’s rights in divorce proceedings,the relevant provisions in China’s legislation are relatively lacking,but in judicial practice,some courts have begun to explore and achieve positive results.In order to enhance the procedural protection of children’s rights in divorce proceedings,the author puts forward the following suggestions: first,improve the mediation procedure of divorce proceedings in China,including determining the mediation procedure before filing a case,setting up a family mediation committee,specifying the specific procedures of divorce mediation;second,strengthen the power of the court intervention procedures,including strengthening the use of the judge’s power of interpretation,and increasing the investigation of evidence by judges.Third,improve children’s participation procedures,including improving children’s personal opinions of the litigation process and the establishment of children’s litigation representative system.