Research On The Compulsory Transfer Of Guardianship Of Minors

In recent years,the media has been exposed to the events that the rights and interests of minors have been infringed by the parents.In 2013,the case that mother starving two young daughters in Nanjing was exposed,all people in an uproar.The incident of parents or other guardians against minor children has caused widespread social concern and became a hot spot.In November 2014,The four department jointly issued ?the opinions on several problem of dealing with the action thatthe guardian against the rights and interests of minors according to law?.This make the system of compulsory transfer for guardianship of minors has legal effect,and it making the guardianship of minors not only has the value and significance of the field of private law,but also has the significance of public law.As the compulsory system of guardianship of minors is gradually applied to judicial practice,the defects and problems are becoming more and more obvious.First,the important factor that restricts the implementation of this system lies in the guardianship arrangement of the minors after the compulsory transfer of guardianship.Can the compulsory transfer of the guardianship of minors be the most important way for the state to intervene in parental relationship between parents and their children?Besides,Is there any other intervention can the state take?Can the guardianship be restored after the compulsory transfer? If it is restored,what conditions need to be met?In view of the above problems,this paper intends to do the following research from the perspective of the transfer of guardianship of minors under the public law.First,the paper expound the basic system of the transfer of guardianship of minors in the guardianship,the private law,and the public law,then analyze the theoretical basis of the compulsory transfer of guardianship of minors,and then summarize the experience of the compulsory transfer of the guardianship of minors from other countries,discussion on the rationality and necessity of its existence.Second,Through the sorting out of the reality of the inappropriateminor guardianship in China in recent years and the 12 cases of forced transfer of minors' guardianship issued by the Supreme People's court,we objectively analyze the innovation and practical difficulties of the development of this system.It is the related subjects are lack of initiative to start the procedure.The omission of public welfare lawsuit of the procuratorate in such cases,the weakness of the prepositive procedure of the compulsory transfer of the guardianship of minors,the imperfection of the follow-up guarantee system,and the weakening of the system of compulsory reporting,cause many cases of minors' rights and interests have been violated can not be found in time.The weak temporary assistance system,the unsatisfactorystatus of temporary custody,the shortage and the low professional level of salvage service personnel,the unreasonable allocation of professionals,All of them restrict the function of the organization.There is not a effective method before the judgment of the Compulsory transfer of guardianship of minors,and there is also not a comprehensive resettlement regulations after the judgment,the state is lack of Supervisoryforceand powerful safeguards.The period of restoring the original guardianship after the compulsory transfer is not scientific,and so on.Third,from the carding of the basic national conditions of our country,the present difficulties of the development of the system,and the experience of other countries,as well as the basic foothold of state responsibility.In order to better protect the legitimate rights and interests of minors,We make the following suggestions: Stipulate to continue the right between the guardians and the minor under guardianship;clarify the litigation status of the procuratorate in such cases;establish an effective state guardianship and supervision system;Improve the prepositive procedure of the cmpulsory transfer of guardianship of minors,including following the principle of proportionality and the principle of necessity,implementing the compulsory reporting system,improving the level of temporary guardianship of minor assistance and protection institutions,enriching the measures the state intervenes in parental relationship between parents and children.Strengthening the follow-up resettlement system of the compulsory transfer of the guardianship of minors,including establishing a national resettlement mechanism,treating the restoration of the parental guardianship cautiously,and so on.