A Study On The Principle Of Maximizing The Interests Of Minors In Family Lawsuit

Article 3 of Part I in The Convention on the Rights of the Child adopted by the United Nations in 1989 goes as, " In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." As a consequence, the principle of the best interest of the child --- the basic rule of international child protection---has been formed. The common recognition of adults to this principle has promoted the child protection in the world. Most contracting states constructed or remedied its legislation on the protection of child’s interests based on it. China joined the international convention and enacted the Law of the People’s Republic of China on the Protection of Minors in 1992.But we noticed that whether at home or abroad, the legislation of the child interest protection has been focused on the substantive law and the juvenile criminal judicature almost with no child civil jurisdiction. However, in the long run, complete minor civil jurisdiction is much more significant to both remedy and maintenance of child rights. Rational minor civil procedure can not only effectively stop children involved in cases from being hurt by adults again, but also help judges make appropriate judicial decisions beneficial to minor’s physical and mental health. Meanwhile, the advice, suggestion and encouragement made by judges as parens patriae representatives to minors involved in cases can also induce the adult society to form correct child parenting concept. Therefore, complete and rational minor civil procedure is the concrete implementation of the best interest of the child in the civil jurisdiction. It should be contained in the foundation of harmonious society ruled by law that special minor civil procedure according with the physical and mental developing characters of China’s children under the guidance of the principle of the best interest of the child.This article starts from the ontology of the principle of the best interest of the child, trying to probe the rational expression of it in the minor civil procedure based on clarifying the meaning of it, and puts forward the constructing strategy of special minor civil procedure. The article discusses from the following five aspects:Introduction mainly discusses the significance of the topic and the research status of the problems involved. Then it introduces the logical structure of the whole article and the possible innovation in the research. At the end of this part, we will have a unified and standardized interpretation of the "children" and "minor" terms that may lead to an confusion understanding.Chapter one discusses the relationship of the principle of the best interest of the child and minor family litigation. This part focus on problem on the ontology of the principle.It begins from the principle of the best interest of the child and faithfully reconstructs its developmental track in western society.Based on the article 3 of" The Convention on the Rights of the child" in 1989,the article explores the connotations of the principle in child protection of modern society through analyzing the viewpoints of scholars of different countries. This part also proves the theoretical source of the principle of best interest of the child and thinks it’s the product of the concept of parens pateiae and the movement of human rights in the world. The movement of human rights in the world enabled children to gain independent right subject status, but children need additional protection due to their characteristics. The theory of parens pateiae makes the protection of children go beyond families and become a category of national public interests, which results in the emergence and rapid development of the principle of the best interest of the child.Chapter two discusses the core guiding role of the principle of the best interests of the child in the contemporary minors family litigation.The principle of the best interest of the child emerged in the judicial procedure of minor civil right remedy and conversely guided the construction of special minor family procedure.The consensus of the world in the principle makes contemporary juvenile family procedure reflecting all roads lead to Rome. Compared to mature minors family litigation system in Western, the existing minors civil rights relief procedure in our country shows the following problems, such as fuzzy concept, lack of standardization, unscientific judicial organ, utilitarian and extensive in scope of accepting cases, system design failing to effectively reflect the features of juvenile litigationthe.This is the main factor that leads to lack the effectiveness of minors civil judicial relief in our country.Active countermeasures is to learning western mature experience for reference, making special procedures of the minors focus on the neglect and abuse case that minors’rights vulnerable easily in the family litigation, and constructing scientific minors family procedure system of ours.Chapter three is about the foregrounds of principle of the best interests of the child under the basic principles of minors family litigation.This chapter discusses the rightful place of the principle in China’s domestic law. It shows the whole picture of this principle in one country’s legal principle from three aspects, namely,the constitution principle, the branch law principle and the basic principle in the construction of the concrete procedure.This chapter focuses on the foregrounds of principle of the best interest of the child in the basic principles of the minors family litigation,thinking that the four basic principles of special priority protection, joint protection, rational protection and extension protection are the concrete manifestation of the principle of best interest of the child in the basic principles of family litigation.Chapter four is about the demands of the principle of the best interest in the participating subjects of the minor civil procedure. It detailed interpretation of special needs of the principle in the minors domestic proceedings of jurors, social investigator, guardian ad litem, social workers and so on.At the same time the part discusses that should relax the minors’ litigant lawsuit behavior ability limit in law,expand the the scope of legal personnel and institutions of the litigation assumption. Only in this way can make the relief of the interests of minors in the family affairs not be caused by insufficient supply of system and be empty.Chapter five is about the implementation of the principle of the best interests of the child in the minors’ family produre. This part discusses the implementation of the principle of the best interest of the child with the foregrounds of the minors family litigation.Which includes taking special care of minor parties in jurisdiction system, relaxing the conditions for prosecution, rapid simple filing system, social investigation following quickly, widely mediation, blending between action and non-action in facts finding, the creation of the atmosphere of the court, the positive court guidance and the continuous attention to the implementation of the rights and interests of minors.Conclusion is about briefly summarizes and concludes the whole article and proposes the relevant problems not mentioned in it.