Research On The Legislation Improvement Of Step-parent Relationship

Parent-child relationship is an important part of social relations,with special social functions and values.In recent years,with the progress and development of society,pluralistic values have had a tremendous impact on the traditional ethical and moral values.The rate of divorce has been continuously rising and the number of remarried families has been on the rise.The tendency of moral binding and right of abstinence has an impact on the patterns of getting along with stepfather's children.In the interests of economy and materiality,the number of cases of disputes concerning dependency,maintenance and inheritance increases year by year.The legislation on the relationship between step-parents and children is mainly based on the provisions of Article 27 of the Marriage Law,supplemented by the part of "Inheritance Law" and "Adoption Law".The current "Marriage Law" does not set mutual support obligations between the step-parents and children of the in-laws,and the standard of division of rights and obligations shows the characteristics of "non-yes or no":in fact,the relationship between raising education and parent-child relationship All the rights and obligations,otherwise there is no legal relationship.Whether or not having a relationship of upbringing and education is the core criterion for judging relations and resolving contradictions and disputes.However,the legislators did not provide any standard and basis for judging what it means to "raise a relationship of education." Judicial practice is also different in standards and different from each other.The second instance of the case has a high retrial rate and affects the authority and unity of the judiciary.The root of the judicial practice still lies in the ambiguity of the legislative standards.Whether or not the "relationship of upbringing education" can be judged by the general rules of closed type supplemented by the special handling rules of open special cases.Based on the theory of "identity possession" and the theory of "de facto guardianship and support",the general rules of "living together for more than five years to form a relationship of upbringing education" are established and the connotation and standards of "living together" are defined:It is necessary to have the appearance of"living together in common" to meet the "elements of fame" and also to meet the"elements of treatment." Stepfather takes care of stepchildren as if they treat their own children.For more than five years,Treat their own parents as parents and continue to support them for more than five years in a row;have basic material and financial support and provide them with spiritual and psychological care and attention.The establishment of the general rules essentially establishes the rules of presumption of relationship between the step-parents and children:if the relationship between the parties is externally and objectively satisfied,the judge can presume that the relationship has been formed unless the parties can provide sufficient evidence to prove that the facts do not exist.Taking the closed time requirement of "living together for more than five years" as the general rule of relationship judgment can not only provide a clear standard for the judge's judgment,safeguard the unity of judicature,but also guide the behaviors of the parties so that the parties have consequences for their actions Predicted.The establishment of the general rules and the clear judgment of the macroscopic relation standards are helpful to the judicial unity and the universal fairness.However,the complicated life reality inevitably has special circumstances,so that the application of the general rules can not satisfy the individual case's justice and needs to be reserved and open Sexual interpretation of space,the development of special circumstances special handling rules.The formation of the relationship between people is a gradual process,need to be dynamic perspective and standards to be measured.Based on the theory of judicial practice,theory and foreign legislation,this paper analyzes and integrates the elements to be considered in the formation of "parenting and education relations" between the step-parents and children,and then analyzes the rights and obligations of parents and children To refine and categorize,first determine the corresponding rights and obligations according to the degree of saturation of each individual element,then judge the progress of factual relations comprehensively according to the synergistic effect between elements,and give the corresponding rights and obligations according to the proportion floating.Construct a normative foundation combining closed general rules with open special rules,achieve fairness under the condition of clear standards and ensure the fairness and justice of cases under the special treatment rules of special cases.