Viewing Children Rights Protection From The Point Of The Marriage Law

China, as one of the sponsor countries for , plays an important role in protecting the rights of the child. By carrying out the ideology of the child rights protection in legislation, China has initially established the law system of the special protection of the child rights. As the protection of the child rights has just been legalized for a short time, there are still needs for perfecting the law, as well as disadvantages in judicial practice. In those developed counties such as Britain, Australia, US, there are advantages in legislation and administration of justice to be learnt from. This article analyzes the state quo of legal protection of the child rights in our country on the basis of the general theory of it. By comparing with the legal systems in the developed countries, the author puts forward the ways to perfect related lawmaking and judicial system.This essay, except Introduction and conclusion, has four chapters.Chapter one is "outline of legal protection of the rights of the child". It defines the "child" and the "legal protection of the rights of the child", explains the theoretical basis of legal protection of the rights of the child and its meaning, studies the international conventions on legal protection of the rights of the child, explores the basic principles of legal protection of the rights of the child and makes a summary of the theories on legal protection of the rights of the child.Chapter two is "legal protection of the child's rights in other countries by comparison". The author suggests we establish the principle of the best interest of child should to link up with the international standards, cancel the distinguish address between legitimate and illegitimate children, realize the equality among all children in address basing on regulating the principle of "all children enjoy equal rights", replace the concept of parents liability with guardian to change legislative value from "parents' standards" to "children's standards", provide court orders on housing condition, communication, foster sides to help the court to carry it out, establish the system of separate representative for minor offspring in law suit to improve the legal state of the child, implement the plan of fostering the child to safeguard the sound development of minor child, elaborate the law of family foster to carry it out smoothly. In judicial practice, the court deal with the case of child creatively according to the principle of "the best interest of the child", enact "a guide to child representative" to give full play to the court professional directing function. The court reinforces the cooperation with other organs protecting the child's rights to attain the better effect of protecting the child.Chapter three is "the state quo and plight of legal protection of the rights of the child in China". The lack of a unified and definite lawmaking principle causes confusion in legislation, execution of laws and administration of justice. The distinguish address between legitimate and illegitimate children leads to discriminations on illegitimate children. Because of non-separate legal body, the rights of the child are hard to claim. The existing regulations of "parents' standard" violate the rights of children. Because of the lack of regulations of visitation right and communication right, it is hard to safeguard the mental health of divorced children. Registered divorce system doesn't examine "children agreement" according to the best interest of child, so it is difficult to safeguard the children's life and development. The limited object of family foster, the undefined choosing procedure, the single service organ, all of these infect the sound development of the child. Lack of clear definition of parties' rights and duties in foster agreement, the supervision over foster and related liability become a hinder to carry out family foster. In judicial practice, the courts do not carry out the principle of interest of child first. Not establishing a co-system with other organ protecting the child is a disadvantage for protecting the interest of child.Chapter four is "reference and perfection of legal protection of the rights of the child in China". This article discussed the perfection of legislation and judicial practice in protection of the rights of the child in China, by using the experience of other countries for reference and combining with Chinese current fundamental national condition. The author put forward that the principle of the best interest of the child should be established in "Constitution of the People's Republic of China" and "Marriage Law of the People's Republic of China", the related system of the protection of the child in marriage law and the law of family foster should be integrated according to the principle, parents and the court should be guided to dispose of the problems of minor children.