On The Adoption Legal System Of China

The adoption system is long-standing. It can artificially relieve a parents-children relationship and then establish a blood relation in fiction of law, playing a very important role in the human social life. However, nowadays the adoption system in our country still has many imperfect aspects so it can not keep up with the social reality. Therefore, the author using a comparative study method, analyses the adoption system in China in the following four aspects: material requirement of adoption, formality of adoption, validity of adoption and adoption with foreign elements. The author then points out the problems in the adoption law in China nowadays, and proposes some corresponding countermeasures.This paper contains five parts:The first part is a sum of adoption. This part aims at introducing adoption's meaning and characteristics, the adoptive relationship, and the historical background of the adoption system in both China and abroad. This part introduces the adoption system macroscopically, making the readers have a basic knowledge of the adoption legal system and preparing for the following parts.The second part is material requirements of adoption. It's this paper's main part. The author studies this part in the following three persons: adoptee, adopter and person or institution placing out a child for adoption. Firstly, the adoptee. Today in the adoption law in China the adopted persons are restricted to be ones less than 14 years old, except some special legal cases. The author proposes that adults and persons aged between 14 and 18 years old should be included in the adoptee, and also provides the minimum age of the adoptee shall be more than 6 weeks. Secondly, the adopter .The adoption law in China has quite a lot of restrictions, so the author proposes that if the adoptee are abandoned infants or children not raised by the social welfare agencies whose biological parents can not be found, and children whose parents are unable to raise them for some special difficulties, adopter should be free from the restrictions that he or she should have no children or he can raise only one child; if a step-parent adopts his or her step-child, he or she should have the ability to raise and educate children and have no medical diseases assumed to be unsuitable to raise children; if a spouse adopts the other one's children, he or she can do it alone; adopter should be more than 18 years older than adoptee; if a single person adopts a child who is the other sex, he or she should be at least 40 years older than the adoptee. Finally, person or institution placing out a child for adoption. The author proposes if one has no capacity to consent or refuses to consent maliciously, his or her right to consent should be canceled; the spouse and children of adult adopter's right to consent should also be considered.The third part is the formality of adoption. Now the formality of adoption in China takes the single doctrine of administrative registration. Although compared to the former situation with administrative registration, contract and notarization existing in the mean time, it has made some progress, the supervision is still insufficient and to set up adoption is too hasty. So the author proposes the court's power to review should be introduced, a trial custody period of one year long should be provided and the quality of adoption registry office staff should be statutory.The fourth part is validity of adoption. The adoption law in China takes the single validity of plena adoptio, so it can not satisfy the needs of the adoption reality. The author proposes the adoptio minus plena should be added, and plena adoptio should be kept confidential absolutely.The fifth part is international adoption. This part aims mainly at how to choose the applicable law correctly. The author believes that adoptee and adopter's domicile country law should both be applied regarding the material requirement of adoption; law of the forum should be applied regarding the formality of adoption ; the adopter's domicile country's law should be applied regarding the validity and termination of adoption.In sum, there are many problems in our adoption system. Through a comparative study and absorbing the essence of foreign law, the author proposes some corresponding countermeasures and suggestions, hoping our adoption system will become perfect quite soon.