Research On The Legal Protection Of Family Rights In China Since Reform And Opening Up

Since reform and opening up,promotion of major top-level plans,such as a harmonious society,comprehensive“administration by law”,modernization of national governance,socialist core values and excellent traditional Chinese culture have laid the foundation for China's development.As an integral part of every top-level design,the issue of family rights is an excellent vantage point of this background image.In particular,ideal of China's legal governmance needs well treatment of families and their rights.General Secretary Xi Jinping has repeatedly stressed the importance of“paying attention of family,family education and family style”.However,ignoring the family tendency exists in current law in our country.This tendency is embodied in the following aspects: attaching importance to marriage but making light of family,emphasizing on the rights of family members but despising the rights of the whole family.This is not consistent with the status of family,which is an important unit of the society in practice.In order to give full play to the social subject role of the family,we need to pay attention to the protection of its rights.For the whole thesis,the Marxist perspectives on family are measuring scales for both the theory study of family rights and the reflection on the practice of family rights in China.Although,in practice,it is impossible for the exact judgement of family rights in China,the Marxist worldview and methodology still have important theoretical guidance for analyzing the status of family rights in China since reform and opening up,estimating whether there remain problems,thinking about the causes and best solutions.In addition,General Secretary Xi Jinping's view on national culture,Chinese style,etc.are also important theoretical support for analyzing and solving problems.On top of this,research method of literature,historical analysis,comparative,interdisciplinary are pervaded in this thesis.Based on this,this thesis is arranged as follows:Chapter one introduces the basic theory of family rights.Based on the definition of family and family rights,elements of family rights are analyzed and content of family rights are arranged.The preliminarily view is that the family rights is not single,but has both rights and obligations.The former refers to family and its members,while the latter mainly the country.The content is not single too,but a“rights package”—a huge and complex system composed of several categories,such as family formation right,family survival right,family health right,family harmony right and family development right.The rights are rich in connotation and variety and names of right are almost inexhaustible.In the process of research,we can only choose its representative right content as the starting point of this paper.Chapter two presents the justification of family rights.The views of classical Marxist writer and main leaders of Chinese Communist Party on family lay a solid theoretical foundation for family rights.The ethics of equality,caring and harmony and humanistic spirit of Chinese family culture have paved the moral foundation for family rights.In practice,the family subject consciousness has revived,the rights consciousness has awakened.And there is demand for rights after the evolution of the idea of rule of law and the improvement of family status with the theory of importance to family by General Secretary Xi Jinping and a series of measures taken by the Party Central Committee to build families.All of the above lead to legitimacy of family rights obvious.Chapter three illuminates the evolution and consideration of family rights legal protection in China since reform and opening up.In the past 40 years,the legal protection of family rights in our country has made great progress.However,comparing with the basic principles of Marxism,such as Marxist theory of humanism and rights,its shortcomings are obvious.It ignores family value but excessively relies on individual value in legislative concept,lacks family civil subject status in legislation,the scope of legal protection is narrow,there is deficiency for Chinese traditional family culture and there is no legislative basis for family judicial reform.Judicature has not done enough.And the understanding of the particularity of family disputes is not enough.All of the above restrict family rights protection.Various reasons could be found after consideration.The adverse influence is brought by family marginalization and anti-family trend revolution.Social stability is affected by falling of family value which is caused by marketing.Chinese traditions are rejected,at the outset by legal transplant which imports foreign family values.This transportation finally makes the building of Chinese family values collapse completely,which leads to the unsatisfaction of present family right legal protection.Chapter four describes principles of legal protection of family rights in China.Firstly,the legal protection of Chinese family rights should adhere to Chinese characteristics.The object of family rights legal protection is the people with family and family rules.This is the unique content of Chinese traditional culture.Family rights protection should face up to national traditional culture.While protecting the rights of the family,we will carry forward the Chinese wisdom in traditional family and law of family issues.This thought will have in-depth legal philosophy value for the trend of legal governance in China.Secondly,the legal protection of family rights in China requires necessary restrictions.Regardless of whether it is for the general population or special groups such as prisoners,armies and their spouses,restrictions are necessary.However,the restrictions should be reasonable,and the limitations should be in reasonable scope.Therefore,the principles of legal reservation,proportion and the no restriction of personal dignity right should be observed.Thirdly,the legal protection of family rights in China needs to correctly treat the Western rule of law civilization and experience of the Western rule of law.Pursuing Chinese style of family rights protection,we must still actively absorb advanced Western family rights protection systems and experience for use in our country.However,it is necessary to transplant independently,and localize the debugging and transformation of the transplanted system,which further suitable for China's national conditions and highlight national stlye of the legal protection of family rights in our country.Chapter five is the optimal path of legal protection of family rights in China.Based on present problems,it is suggested to reshape the concept of family legislation from two aspects: the return of the whole legal value of the family and the separate reflection of the legal significance of members' rights.It is recommended to develop the family issues law from the following aspects:timely confirmation of the qualification of family civil subject,timely incorporation of new family rights into law,full attention to the special family rights,and timely matching legislation of family trial.It is proposed to promote the judicial reform of family issues in China from the following aspects: updating the concept of family issues and improving the flexible trial technique of family issues.Family rights are the warmest rights.In an era when the right discourse prevails in a law-based society and traditional culture returns,family rights are encouraged and family responsibilities and duties are also emphasized.Therefore,on one hand,it is suggested that legislation should be established to meet the needs of society,which means new and family rights with family specialty should be legislated in time.Open-minded attitude should be taken for family;On the other hand,it is advocated that family rights should match with responsibilities and connect with giving,caring and altruism.There should be appropriate shrink at family.In this way,with traditional essance,famliy is a modernized subject.This is not only a necessity for family happiness,social stability,a harmonious society,but also a necessity for a new pattern of basic-level social governance and modernization of national governance.In summary,there's hesitation and confusion about legal protection of family rights in China since reform and opening up.When there is dissatisfaction from the people,unacception from the country or society,these confusions should be get rid of,real family rights shoud be embraced and the future of family rights should be treated with open attitude.Only through rational thinking about how to treat family rights can ideal of legal governmance be realized.