| The Parentage Law is the sum of legal norms on the adjustment of the parent-child relationship. In modern society, family law has had the huge change, the United Nations international literature advocated the principle of the best interests of the child, many national laws have given a response to amend the legislation, in the adjustment of the parent-child relationship law established the principle. From the historical analysis and comparative law perspective, comparing the regulation reform of history and current law of some countries of the parent-child relationship of legal system, summarizes its development trend, combined with China’s current legislation and judicial practice, the reflection on the legal system of our parent-child relationship problems, suggestions for establishing the principle of the Best Interests of the child in China’s family law according to this principle, and proposed suggestions to improve China’s family law.In addition to this introduction, this paper is divided into five chapters, totaling about 20 thousand words.The first chapter discusses Parentage Law legislation idea and system changes. Divided into five sections, the first section discusses the basic content of the first section parentage law. The main varieties include parent-child relationship; parent-child relationship occurs, change, destroy and occurrence, change, cause of termination; effectiveness of parent-child relationship, between parents and children shall enjoy the rights and assume the obligations; parents custody of their children; parents on the rights and obligations of women after divorce and adoption by several parts, study on Determination of the content of parent-child relationship. The second section discusses Parentage Law Regulation significance. We should strengthen the legislative protection of minor children in china, to ensure that the legitimate rights and interests of the children from formal equality to substantial equality, in order to protect the rights come true. The third section discusses the extraterritorial investigation Parentage Law Evolution. To explore the relationship of law, need to understand its development history, basic concept of parenthood legislation experience from the family standard-- parent based development-- children standard. In the ancient Parentage Law period, the parent-child relationship in the "patriarchal" first stage, "father" to "family" has the power of life and death, not only the body of the children, including family property by the "father" as the exercise of the right main body to exist, the children want to obtain the rights might almost zero. During this period, children are classified as "legitimate child" and "illegitimate child", illegitimate child without a father, suffered all kinds of discrimination. According to jurisprudence, a civil law and common law of the two law, since the modern times, France, Germany as the representative of the civil law countries has formulated the "Civil Code", in the bourgeois "freedom, equality, fraternity" under the slogan, compared to ancient society, "people" from the patriarchal feudal society the shackles of it, pay more attention to the family of parents and children’s rights and obligations, and thereafter also ongoing changes in the law, but the law still to parental rights. While the modern legal claims to "children" as the standard of the law, Germany law abolished the legitimate and illegitimate different appellation, change the paternity for care, pay attention to the parents of their children’s compulsory rather than rights, increase the protection of the interests of the child. In Britain and USA as the representative of the common law countries pay more attention to the development of case law in the custody of the parent-child relationship, history has experienced development course from the principle of presumption principle priority rights--take care of children and caregivers of children-- the principle of the best interests of the. Although the idea of legislation of two legal systems are different, but up to now, all the final regulation on parent-child relationship established "the principle of the Best Interests of the child", showing the same effect. The fourth section discusses the evolution of legal system Parentage Law. Chinese ancient Parentage Law also follow the "patriarchal" first, mainly by Confucianism and feudal ethics regulation. Modern legislation that parents and children have equal status, also pay attention to children’s legal rights. But the study of China’s mainland dear sub law, its legislative content briefly, Not established completely in "the principle of the Best Interests of the child" as the guide of legislation. The fifth section discusses the Chinese and foreign comparison and analysis of the evolvement of parentage law. Through comparison and analysis, to explore the marriage law legislation idea of the similarities and differences and cultural differences, these content directly affects the specific terms of national legislation on parentage.The second chapter discusses theoretical basis of the principle of the Best Interests of the child. Divided into four sections, the first section discusses the connotation of the principle of the Best Interests of the child. Mainly discusses the connotation and principle of the Best Interests of the child under international law, in the new era of promoting children’s rights, protection of the rights of children to look at the child’s vision, explains that what is the Best Interests of the child, this is the emphasis of children’s individual rights, rights restrictions on adult. The second section discusses the basis and the historical change of legal status of children. The improvement of the status of the children is the ideological and social basis and legal basis, which is the further development of social progress, the concept of equality of results. The development status of children from the experience of the depression limit stage-- special care stage-- the comprehensive protection of stage. To investigate the children’s right to establish the status of subject in law.The third section discusses the value and function of the principle of the Best Interests of the child. In 1989 the UN "Convention on the rights of the child" put forward the principle of the Best Interests of the child, has the value orientation of equality, freedom, fairness, justice. To respect children as independent individuals, advocacy for children’s and adult equal status, and can protect the vulnerable groups of the family. The principle of the Best Interests of the child but also reflects the functions as follows: to establish the implementation principle in dealing with children’s affairs, to give the children’s participation right’s foundation; strengthens the parents for the child’s responsibility, entrusted the supervision of children’s affairs. It is timely to amend the law, provides the theoretical basis to adapt to social development. The fourth section discusses the principle of the Best Interests of the child in the family law in. The laws of many countries launched to the principle of amending the law of the boom. The primary responsibility to consider family parent-child relationship in general for parents, this is the traditional civil law regulation category, for the protection of children’s interests, more national laws to strengthen the national supervision by public power, institutions such as courts of intervention, private rights and public rights, need to balance in a certain extent. Interventions of parental rights, severity and must be parents do not fulfill their obligations and maintain the interests of the child to adapt. Can’t let parents, can not intervene too much, the need to balance the revision process which is the parent of problem.The third chapter discusses review and Analysis on the current foreign Parentage Law System. Divided into three sections, the first section discusses the principles and legislative style of modern family law. For the convenience of comparison, the author selects the civil law of France and Germany and England and USA parent-child legal system investigation. Analysis of the legislative principle of the national family law, have adopted the principle of the Best Interests of the child, has its common characteristics. In legislative system, parallel paternity and guardianship system in countries of continental law system, Anglo American law countries with big guardianship system, causing such differences and their respective cultural traditions. The second section discusses the legislative content of modern family law and analysis. Specific legislation for Parentage Law, together with the national family law history of the system from five aspects, and makes comparison analysis, to analyze its merits, so that China will amend the law can be used for reference. Specifically, in the confirmation system of parent-child relationship, confirmation method of motherhood can adopt who gave birth to the child, who is the mother of the child. But in the surrogacy problem, the relevant provisions of Germany and the United States, Britain and France have some references, such as the German law firstly from the law to prohibit, secondly as a result of illegal surrogacy children’s behavior, the best interests of the child as the principle to determine whether to establish and who established legal parent-child relationship, in order to maximize the protection of the legitimate rights and interests of children. In confirmation of father’s status, in confirmation of father’s status, German law to determine the identity of the father in three ways, the marriage and recognition and in accordance with the provisions of the court’s decision, the content more comprehensive. The author thinks, in disregard of the father, America method that gene proved to be a factor in determining paternity but not the only factor to agree, because children’s interest is the focus of our attention. German law once father "putative father" identity was withdrawn after to determine paternity claim for alimony recourse, such provisions shall also conform to the social reality. The child claim issues, many countries have abolished the legitimate and illegitimate child appellation, the traditional child claim system content has changed. The author thinks, can learn from American law established voluntary recognition and compulsory admitted two system to determine the identity of father. To determine the relationship between father and son women through voluntary admission, can ensure that has been formed in fact family ties; and the action force determine father daughter relationship, can make the child support obligations have been fulfilled, will benefit the children need. In the parents custody, traditional parental right system has been replaced by the parents care in German law, emphasizing the obligation and responsibility of parents, and distinguishes the personal care and take care of the care of the provisions of property, rights, change and termination, very detailed on the care of the rights system, complete specification. Stressed the importance of national supervision, and the country assistance through Youth Bureau, America, with particular emphasis on child care by parents assume, unless special circumstances, should try to keep the relationship between parents and children, need to balance of autonomy and national public power intervention in private homes to protect particular attention, these are worthy of our family method to draw a perfect. The parents of their children’s duty of maintenance issues, the German law, the costs and the cost of training university adult children, parents still have to bear. In the maintenance assistance to children, the countries all over the world with the relief measures, the child support enforcement, recording and tracking system can better solve the problem of difficult enforcement of American method on "new hire register", has a unique social value. The relationship between parents and children in custody after divorce, relates to the custody of the judgment principle, the method takes into account the interests of children, making children happy list for more detailed consideration of the legitimate rights and interests of the children. The children’s right of intercourse, attention is paid to the right is the rights of children rather than the visitation right is the rights of parents, this is a great progress. The third section discusses the legislative trend of family law. Through the above comparative analysis, It can derive the development trend of modern family law, legitimate and illegitimate children this distinctive name, the meaning of discriminative transformation into a unified call; presumption of legitimate children gradually been recognized system of parent-child relationship is replaced; artificial birth and "surrogate" the emergence of new ideas, take care of right; his duty, after divorce parental rights is the emergence of a new trend.The fourth chapter inspects and reviews the current system of our country Parentage Law. Divided into two sections, the first section describes the current situation of legislation and judicature in our current legal system of Parentage Law. The analysis of China’s current law in legislative and judicial status of, and through the introduction and analysis of typical cases, reflect on the current system of our country. The second section analyses examine current parent-child legal system. In the children’s name, our current Parentage Law still distinguish between legitimate and illegitimate children, back and the trend of the world; and in principle, the principle of the best interests of our country lack children regulations; in the legislative model, the guardianship system of China, which legislative model of the legal system and the mainland in the legislative tradition the "maintenance"; in a word language expression is not strict, non-standard terms; in a paternity and claim system, not from the law to establish paternity system and paternity claim system, parent-child denied that the law is not detailed enough, not clear rights denied, deny period; in the guardianship system, monitoring of the deficiency of the content is more, not separate custody after marriage, there is a gap between the legal and social reality, the lack of children the right to request the return of the relevant provisions and medical consent right involves the vital interests of children; the national supervision, national supervision exists in name only, the protection of children is not enough; the child support issues, especially there are difficulties in execution of alimony payment execution, the court execution effect is not good; relationship between parents and children in custody after divorce, divorce on children The godmothers judgment on the part of the provisions can not reflect the best interests of the child, especially the laws and regulations of our country’s system of visitation right emphasize only one parent rights while ignoring the minor’s legitimate rights and interests, all these elements need to be perfect.The fifth chapter discusses the principle of the Best Interests of the child as a guide to improve the legal system of Parentage Law. Divided into two sections, the first section describes the selection of legislative principles and legislative style. Through the comparative analysis of the domestic and abroad, and the previous research results, the author puts forward the legislation in principle to the principle of the Best Interests of the child as the guide, according to the reality of our country, the need to modify our Parentage Law in some proposals. In the legislative model, the German law, establish the parents of their children’s care and custody separation mode, each. The second section analyzes the design content specific system of our country family law under the best interests of the child. In the children’s name, no longer distinguish between legitimate and illegitimate children. In the paternity system, the marriage only as parents type for confirmation. We should establish a parent-child claim system, through voluntary claim and compulsory claim way to protect the legitimate rights and interests of the minor children. The establishment of a complete right of parents to take care of the system, standardize the right of parents to take care of acquisition mode, perfect the right of parents to take care of the content, set the public power supervision mechanism and minors relief agencies, to provide assistance to minors and health care, set up a special family courts to deal with disputes involving the relationship between parents and children. About alimony payments and executive, suggestions for American method by "new hire register" record staff information, to find out the non payment of alimony of the father or the mother party, strengthen the enforcement of law. After the divorce of parent-child relationship, consider the best interests of the child to take care of the right judgment involved factors. On a child’s right of intercourse, in addition to their parents, other relatives such as communication, grandparents, brothers and sisters, who are very close to the right of communication, subject to the best interests of the child to determine. All the recommendations in the best interests of the child as a guide, earnestly safeguard the legitimate rights and interests of the minor children, to promote the healthy growth of minor children, this is our pursuit of the goal. |
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