Research On The Disavowal Of Parenthood

The disavowal of parenthood is an important system. It establishes the law degree between parents and family in the realm of paternity law. It is inadequate to govern such a relationship without law. There is no regulation about it in Chinese Family Law. So there is serious defect about system and content of legislation in the paternity law. The expert does not research deeply. Paternity law becomes the thinner part of the whole legislation. This article uses the comparable method to research legitimating in the civil code of FranceGermany, Italy, Switzerland, Japan and so on. We should desert the backward and steep regulation and study the advanced legislative experience and according to Chinese actual situation in order to work out the system of disavowal of parenthood. At the same time, the author designs the concept about the body of disavowal, the premise of disavowal, the reson of disavowal and so on. The auther hopes that these concepts are good for the research and legislation of the disavowal of parenthood. The article is divided into three parts which has carried on the disscussion to the above questions.The first part is"The concept, meaning and nature of the disavowal of parenthood". According to the history of disavowal of parenthood and advanced legislative experience, the author gives the concept of disavowal of parenthood newly. It means that correlative parties disavow their blood relationship between fathers in law and children according to law. At the same time, their rights and duties to bring up children are denied.Disavowal of parenthood has important meaning to the improvement of Chinese Family Law and the bearing right of husbands. We should desert the idea about legal marriage children and illegal marriage children. It means equal protection of every children. This is not only the trend of development of paternity law, but also the legislation need of actual situation. About the nature of disavowal of parenthood, there are three main viewpoints, affirmation lawsuit, the right of form and commingle of both. The author agrees with the third. Because the disavowal of parenthood affirms the relationship between partents and children. At the same time, it forms certain relationship for some facts.The second part is the legislation system of other countries and districts. It contains four parts. First, we should do as Gremany and suggest that the body of disavowal can be father, mother and children, except for others. Second, the premise of disavowal is the presumption of disavowal. It has three putative methods. Third, it has generalization and specialization of two legislative experience on the reason of disavowal. We should use both of them. Fouth, the period of disavowal is different. For example, six months, one year, two years and so on. As far as our country concerned, we should take different attitude to diffenent bodies of disavowal.The third part is"The suggestions to reform disavowal of parenthood of the P.R.China". There is no regulation about it in Chinese Family Law. Though there are rules about disavowal of parenthood in the current marriage law, they are too general, simple and unsystemic. So, according to Chinese actual situation, legislation should accord the following principles, for example, children's value is the maximum.It contains six aspects about the concept of disavowal of parenthood. First, the body of disavowal can be father, mother and children except for others. Second, the body who is suitted is different according to the body of disavowal. Third, the premise of disavowal is the presumption of disavowal. There are rules of the presumption of disavowal in Chinese Family Law, but they are too simple. We should make it particular. Fouth, the reson of disavowal should be regulated as follows: In the period of fecundation, the father in law and mother separate from each other, expect for the children of test-tude. The physic method proves that the children are not bio-children of father in law. Other facts proves that the children are not bio-children of father in law. Wife cohabits with another person of the opposite sex can not be the only reason of disavowal. None of the reasons can prove disavowal only. Fifth, such an appeal for disavowal should be submitted within one year after the birth of children. Sixth, the disavowal of parenthood can lead to the change of status and property. If the children are not bio-children, husbands do not have the duty to bring up children any more. At the same time, husbands have right to ask for the money that he has spent on the chileren and the compensation of his spirit loss.In the end, the author moves an amendment at the base of studying the advanced legislative experience of other countries and districts and Chinese actual social situation.