On The System Of Visitation Right In China

Visitation right is an important part of relative right.It is the new content in law of marriage recently revised,which fills in the blank of marriage and family legislation in China.In the legal provisions,visitation right is parent's right when not acquiring direct fostering right after their divorce,it not only is benefacial to the close power in parents in divorce realizes,but also benefits to the nonage's heath growth.Instead of being a"new right"in law,it specifies the relatedissues in tutelary system and it is a combination of right and duty.There are different regulations of visitation right in different countries and areas.As compared with these countries and areas,the rule tends to over-generalize,so it leads to appear the disputes of visitation.This article shows the importance of establishing system of visitation right,and it simply analyses the exercise and enforcement of visitation rights. This article also points out the defects which exists in Law of Marriage in China, and puts forward my advices to make perfect the system of visitation right in China on the basis of current situation in China and legislation experience in foreign countries and Macao.This article consists of three chapters:The first chapter shows the significance of the establishment of the visitation right system in China.Firstly, this issue analyses the theoretical significance of the establishment of the visitation right system from perfecting the system of guardianship, compensating the rule of relative law and perfecting the law enforcement syste.Secondly,it shows the practical significance of the establishment of the visitation right system:1.It is the urgent need for the current situation 2.It is conducive to safeguarding the legitimate rights and interests of nonage and parents of divorce 3.It solves the ills of dependent rotation.The second chapter analyses the important content and defects of the visitation right legal system in China.Firstly,it analyses the exercise and enforcement of visitation right. According to the thirty-eighth strip in law of marriage,the right body of visitation right is the parent who does not directly raise a child after the divorce, the obligation body is the other party. There are three ways of exercising visitation,a general visit,staying visit and crossing visit.The court should determine the specific method basing on"agreement first" principle in cases. There emerges such thing that"is not conducive to children's physical and mental health" in the course of the exercise and the court should give its appropriate restrictions.However,it should be resumed by the court after such case disappears. It should be followed in the exercise of visitation right that are non-interference in each other's normal life , not abusing right and maximizing the interests of the children. There are three characteristics of the enforcement of visitation right:1.the enforcement subject is the obligation body's assistance;2. the long-term of the enforcement of visitation right; 3.the later nature of the enforcement result of visitation right. The difficulties of the implementation of the right are : the lack of means of implementation, difficult to define the obligations of the debtor and hard to define execution procedures. We should conform to the following principles : conducive to the children's physical and mental health, the principle of mutual benefit,trial and implementation balancing between each other ,treating children who refused to be visited differently and combining education with compulsory.Secondly,it analyses the defects of visitation right system in China. The scope of visitation right body is too narrow,On one hand,the scope of right body is too narrow,the specific is as followed:1. The scope of the parents is be given unnecessary restrictions,the word"divorce" is superfluous in the law; 2.The main status of grandparents and other close relatives is not 3.Children's main status is not also provised.On the other hand, the scope of obligation body is too narrow. The contents of visitation right are not clear,the four aspects are as followed:1.The right content is not clear;2.The obligation content is not clear;3.The right and obligation are not unified;4.The restriction content is not clear.The implementation of visitation right is not incomplete,for the following three aspects:1.The provisien of implementation is not conducive to children's physical and mental health;2.It is lack of statutory enforcement measures;3.It is difficult to operate the provisien of implementation.The third chapter puts forward my advices to make perfect the system of visitation right in China on the basis of questions and defects of our visitation right system.Firstly,I propose that we should expand appropriately the body scope of visitation right.On one hand, the scope of right body should be appropriate to be expanded.There are three specific advices:1.Clear the scope of the"parents"and propose to delet the"divorce"word of the thirty-eighth strip in law of marriage;2.Clear the main position of grandparents and other relatives, which is consistent with international trends, China's basic national conditions, our law and the spirit of the legislation;3.Clear the dominant position of children.On the other hand, the scope of obligation body should be appropriate to be expanded. Substituting dependent,nonage attending kindergartens, Women's Federation, habitat (village) committee, a police station, young people's rights and interests protection department would become duty to help realize visitation right.Secondly,I propose to specify the content of visitation right, and raise a four-point proposal relatively:1.Clear right content of visitation right;2.Clear obligation content of visitation right;3.Clear the unity of rights and obligations;4.Clear the restriction content of visitation right.Thirdly,I propose to complete the enhancement provisien of visitation right. Visitation right is a special right,on one hand,I advise to enhance such cases humanely:1.Implement the principle of dispersal education; 2. Produce the legal instruments detailedly and it has a certain degree of flexibility;3. Mobilize the whole society to do a good job of the implementation of visitation right;4. Use coercive measures appropriately.On the other hand,I propose to give special provisions in the case of implementation procedures. Finally,I propose to increase the relief measures of visitation right.China's current regulations can not fully protect visitation right, it is proposed to increase the following relief measures:1. Spirit damage system should be provised; 2.It should be provised that dependency can changed;3.the Court should apply correctly the crime of refusing to implement the judgment instrument;4.Special procedures are applicable to visitation right dispute.In a word, visitation right is the new content of the Marriage Law,and it is a complex issue worthy of consideration. There is still a long way to go to improve the visitation right system in China,lawgivers and judges must strive for the perfection of the system of visitation right all together.