Judicial Cognizance Research Of De Facto Adoption

The event that the orphans died in Lankao making the adoption without registration facing an embarrassing situation again. In real life behavior relies on the fact that there are many traditions and ethics to be adjusted, not in conflict with the interests of society. However, the fact is that the behavior that adopting orphans without any registration is excluded by the prohibiting law and it is difficult to coordinate with the habits and morals. Besides, it will affect the interests of the community. What is more, the difficulty of coordinating with the adoption without any registration makes it indeed to deregulate law and take more protective measures. From the children’s perspective, it is not only conductive to maintain harmony of family relationship, maintain social stability and protect the fundamental rights of the adoptees, such as the right to subsistence, but also compliance with adoption law and meet the people’s requirements of adopting which is that biological parents raising the children or taking care for a permanent home; from the perspective of the adoptees, adoption can largely be reasonable to compensate the family of marriage defects, it is because that when the child comes to the adoptive family, the family will be full of happiness, such as if the family lost their child,they are always immersed in sorrow and sad. But when a little child comes to this family, both the father and the mother will pay more attention to the new family members and sometimes forget their sadness. Besides, the adoptees can enjoy the happiness atmosphere and can live in a permanent family. And the family will bear the responsibility of raising children and educate them to be good persons. From the perspective of social development and stability, it also can reduce the numbers of social criminals. And the reducing of the orphans will decrease the opportunities of doing various illegal things. To some extent, it will also reduce the potential factors of instability and will promote the harmonious development of the society.This article will adopt the perspective of legal relationship, in order to protect the rights on the basis of the relationship which was built between the adoptees and the children. Firstly, the author will clarify the concept about adoption by analyzing our country and local government laws and regulations related to the adoption without registration. Secondly, the author will analyze specific regulations, judicial cases. Eventually, the author will put forward the suggestions about how to confirm the legal relationship of the adoption and protect the legitimate rights and interests of the parties and the principles of judicial practice.This paper will be divided into five parts:The first part is that the author will put forward the problem about the De facto adoption such as the adoption without registration. This part firstly will cite a relevant case which is judged by Xiamen intermediate people’s court in Fujian province. And this case is that the relationship between the adoptees and the children is not confirm to the law and how we can protect the rights of the children and make the adoptee take the responsibility. And secondly, the author will also summarize the current academic researches and introduce the research value and research methods.The second part is about the concept of the adoptions without registration or illegal adoption. Firstly, the author will introduce some point views from the scholars to help the readers to understand the adoptions without any registrations and even some illegal adoptions. These point of view will be divided into three theories:legal requirement theory, behavior theory and negation theory. Secondly, the author will summarize the judicial practice about the adoption and introduce two methods of solving the problems of the adoptions and protect the children. What is more, the author will clarify the specific practice about the local government and propose the author’s own view of the adoption.The third part is about confirmation of the law and judicial case of the adoptions without any registrations. This part firstly will list the Chinese laws, regulations and department rules. Secondly, the author sorts out the relevant judicial cases, and put forward some differences and confusions of the judicial practice.The fourth part is about establishing the judicial cognizance principles of de facto adoption. This part is mainly based on the analysis of the facts in the judicial practice to adoption identified, and summarizes the differences and confusion, proposed the judicial principles such as the principle of the child’s best interests and the fair principle.The fifth part is about the constitutive requirements to identify de facto adoption, this part puts forward four constitutive requirements to identify the relationship between the consignees and adoptatus:the age constitutive requirements of the client, the responsibilities constitutive requirements, the identity constitutive requirements of the client and the prescription constitutive requirements.