Study On Parental Right System

In recent years, it occurs frequently that rights and interests of under-aged children are seriously infringed and it is often heard that under-aged children disobey parents'discipline, leave home and even lead to tragedy. Meantime, as the rate of divorce increases, the number of cases concerning fostering under-aged children after their parents are divorced keeps increasing. Because there are deficiencies in law, legal rights and interests of under-aged children cannot be protected adequately. Therefore, this paper makes a necessary study on parental right system based on judicial practice. There are two chapters in this paper. Chapter I Definition, nature and history of parental right Parental right refers to summation of rights and obligations of protection and education, which the guardian shall assume in terms of person and property of under-aged children, concentrating on protecting benefits of under-aged children, based on definite relationship of their own children. In terms of nature of parental right, parental right combines rights and obligation into one. At present, though there is actual content concerning parental right in law of our country, there is no explicit parental right system, which counters to the general practice of continental law system. In the civil code of countries of continental law system, parental right and guardianship are two different concepts with strict distinctions as follows: first, the definition of parental right and guardianship is different; second, the nature of parental right and guardianship is different; third, legislative principles of parental right and guardianship are different; fourth, the occurrence foundation of parental right and guardianship is different; fifth, obligation of fostering of parental right and guardianship is different; sixth, limitation of rights of parental right and guardianship is different; seventh, usufruct of property of parental right and guardianship is different; eighth, supervision authorities of parental and guardianship are different. Therefore, parental right system shall not be simply replaced by guardianship system. Parental right originated from Roman law and Germanic law. In early period, Roman law prescribed right of father. The earliest right of father is an absolute controlling power over person and property of all the people and things in the family. With the development of the society, regulations concerning parental right in Roman law gradually changed. Various rights were separated from right of father. Till Institutes, right of father became moderate right of rectification and right of restraint. In the period of Roman law, right of father began to include right of protection for children. Right of father in Roman law has two functions: one is ruling family and the other is protecting children. At that time, right of father had appeared in rudimentary form. In modern times, parental right system develops further. It is no longer absolute controlling power. It explicates time limit of parental right, that is, only for under-aged children, but there are unequal factors. Modern parental right system consolidates the protection for benefits of children. At the meantime, it realizes that parents carry out right together. Now, parental right does not include the meaning the right of father has absolute control over children and it becomes system of parents'rights and obligations of fostering, disciplining and protecting under-aged children. Chapter II Legislative conception of establishing parental right system in our country "The case that children were taken by error in Tonghua"has attracted much attention of the society. After trial, the court thinks that the accused violates right of guardianship of the plaintiff and sentences that the accused shall compensate the plaintiff about 500,000 yuan. Though professor Yang lixin considers this case as a successful legal precedent of civil compensation of violation of parental right of others, in first and second judgment, the words, "parental right", do not appear. Though there is actual content concerning parental right in ongoing legal system, there is no explicit parental right system. Parental right is included in guardianship. It is not only fit for the needs of trial practice, but also not helpful for under-aged children to grow up. There are many deficiencies in ongoing laws and regulations. First, definitions are unclear and system setup is irrational. Second, the content is to generalized and abstract and not helpful for protectingunder-aged children. Therefore, in order to live up to the requirements of protection, education and fosterage of under-aged children in our country, it is necessary to establish perfect parental right system through learning from foreign legislative experience and combining with legislative and judicial practice in our country. In the construction of parental right system in our country, we shall insist on following two basic principles: the first is principle of protecting legal rights and interests of under-aged children and the second is principle that man and woman are equal. The ideas of establishing parental right system in our country is: first, separate parental right from guardianship, achieve scientific legislative rules; second, regulations of content of parental right shall be specific and detailed so that they are easy to abide by and carry out; third, based on tenet of parental right system, realize functions and values of parental right system. Following above ideas, the legislative framework of parental right system in our country mainly included following contents: First, content concerning parental right includes rights and obligations of person of under-aged children and rights and obligations of property of under-aged children. The former is right of protecting person and latter si right of protecting property. Right of protecting person refers to parents'rights and obligations of educating, fostering and protecting under-aged children, including: 1. right of designating living place. For the purpose of protecting, educating and fostering under-aged children, the children shall live in the place that person of parental right designates and shall not move to another place without permission of parents. 2. right of request for returning children. When under-aged children are inveigled, kidnapped and sold, hidden or detained, person of parental right has the right to request enforcement organs to investigate people with illegal acts for criminal liability and return the children. 3. Right of agreement and agent concerning physical behavior and physical items, that is, parents are legal agents of under-aged children, including right of agent for identity behavior, right of agreement of physical behavior and right of decision and agreement of physical items. Right of protecting property refers to that person of parentalright has right to protect property of under-aged children. This right also includes obligation and it is unification of right and obligation, including right of agent and agreement for property behavior and right of managing children's property. Person of parental right is the legal agent of under-aged children. Therefore, they can replace or agree property behavior of children on the premise that legal rights and interests of under-aged children are not violated. Second, it is about exertion of parents'parental right after they divorced. first, we shall make principle of parental right exertion clear. During the period that marriage relationship lasts, parents shall exercise parental right together. As for exertion of parental right by parents after divorce, there are three different kinds of legislative rules: the first is principle of single exertion; the second is principle of dual exertion and the third is combination principle of single exertion and principle of dual exertion. Both principle of single exertion and principle of dual exertion have merits and demerits. Therefore, we shall combine principle of single exertion and principle of dual exertion in legislation of exertion of parental right after divorce in our country. Besides, the other party that does not exercise parental shall be granted with right of visit. After divorce, the parent who does not acquire parental right only stops parental relationship with under-aged children for some time, and his or her blood relationship with under-aged children remains, so he or she still has part of parental right based on blood relationship. Therefore, most countries recognize right of visit. The right of visit of the parent who does not acquire parental right not only acts as basic rights of parents, but also conforms to children's maximum interests. Third, suspension, rehabilitation and elimination of parental right, in modern legislative conceptions, parent child relationship not only demonstrates parent child relationship in private law, but also relationship in public law, which shall be protected by the country. Therefore, if parents do not (or cannot) assume obligations of parental right or they abuse their right, the country shall intervene by request. Learning from foreign legislative experience, we shall prescribe suspension, rehabilitation and elimination ofparental right when establishing parental right system in our country. Parental right can be suspended and deprived because person of parental right cannot assume obligations of parental right or abuse parental right and infringes interests of under-aged children. It can be rehabilitated when these reasons disappear. Besides, parental right can be eliminated because it needs not or cannot to be exercise.