| Parental power originates from Roman law and Germanic law. It is called patria potestas on Roman law, which means the right to own and control one's children. It developed into a right of protection, which showed up as the protection of children's interests. Most modern countries inherited the tradition of Germanic law, taking the protection of minor children as the center of their parental power system. But different countries have different legislative mode: Civil law countries all have separate parental power system. Common law countries do not distinguish parental power from guardianship and call both of them guardianship, with the parents as natural guardian, allowing others as guardian if no parents. Most socialists countries do not have parental power system but have the actual contents of parental power on their laws. As for China, there are many disputes on how to design the parental power system in our country. Based on the analysis on the nature of parental power, this thesis discusses some basic theoretic problems of parental system, such as the construction of parental legal relationship and the choice of the legislative modes of parental power system.The first part is the research on the nature of parental power. Aiming at settling the theoretic disputes on the nature of parental power, this part discusses the meaning of parental power from history, social psychology and comparative law, based on which, this thesis concludes that parental power is a right (a private right) in nature and it is impossible to be a right and an obligation at the same time. The oneness of right and obligation only means that right and obligation should be correspondent to each other, which is not to say right and obligation cannot be separated and divided from each other. The obligation of parents to children regulated by law is a kind of responsibility on public law and a kind of social responsibility, which does not belong to parental power and cannot change the nature of parental power as a kind of right.The second part is the research on the construction of the legal relationship of parental power. This part discusses on the subject, object and content of the legal relationship of parental power, concluding that parents are the subjects of the legal relationship of parental power while children are neither subjects nor objects of the legal relationship of parental power, instead, they are the beneficiary of parental power; that the object of the legal relationship of parental power is the emotional interests enjoyed by parents; that the content of the legal relationship of parental power includes the right to appoint domicile, the limited right to punish, the right to visit, the right to ask for return of children, the right to decide minor children'names, the right to permit children's choices of occupation and the right to take care of children'property, but does not include the obligation of the parents to bring up their children, the obligation to compensate for damage or the obligation to educate on the constitutional law.The third part is the comparative research on parental power and guardianship. This part first of all makes a systematic summary of the connection and difference between parental power and guardianship; then it briefly introduces and compares the relative legislative modes on civil law and common law; finally, based on the above comparison, this thesis concludes that China civil law should adopt the legislative mode of separation of parental power and guardianship, which makes for the preciseness of the legal system, favors the protection of the rights of the parents and the children, and fits the demand of the social reality. |
