Research On The Obligation Of Child Support Of Divorced Spouse

Along with our country's unceasing rise of divorce rate, the problem of post-divorce custody of child is increasingly prominent, and the problem of who directly brings up the child and the child support payment has increasingly turned into difficulty of court's judge in judicial practice. Although parents after divorce still have the obligation of child support and education, the breakup of marriage has profound influence which is negative to child. As an instrument of society regulation, law has its invariable objective which is showing loving concern and protecting the minority groups. Especially, marriage and family law as the summations of legal norms which regulates both marriage and family relations has its own legislation guiding principle which is protecting legitimate rights and interests of child. And how to safeguard the rights and interests of child of divorced spouse is its adjustment key point. However, our legislation on obligation of child support of divorced spouse doesn't definitely establishes the principle of the best interests of the child, the protection dynamics for the rights and interests of child and the strengthening dynamics on parental responsibility is inadequate, and there are also certain provisions of infections. Although divorced spouse should undertake together the basic responsibility of safeguarding the rights and interests of their child, when parents don't fulfill their responsibility there lacks perfect legal external compulsion mechanism to safeguard the legitimate rights and interests of child. Therefore this article researches on the duty of child support of divorced spouse from the legal angle with the aim of consummating the legislation of it.Full text contains altogether 36,000 characters besides introduction and conclusion, the main text is divided into five parts, including the following content:The first part is about the elementary theory outline of obligation of child support. First, to define the concept of the obligation of child support, including the specific meaning of the obligation of child support, the distinction between it and parental authority and guardianship. Secondly, to introduce the contents of the obligation of child support of divorced spouse. On the basis of a brief introduction of contents of post-divorce child support system, this article focuses on the obligation of child support of divorced spouse which concretely contains the question of who directly brings up the child of divorced spouse and the child support payment.The second part is empirical investigation and problem analysis on status about obligation of child support of divorced spouse in our judicial practice. First, aiming at the judgment and execution of obligation of child support of divorced spouse, the author conducted a field survey in her hometown, referred to part of cases ended relating to post-divorce child support dated from 11, December2005 to 16, December2007 in certain primary court, and finally got some basic information about these cases. The approach which the author takes is reading files of materials and enquiring the judge to get relevant circumstances. Secondly, the author finds that there exists universal problems about the performance of obligation of child support of divorced spouse through research and analysis on the survey data combining with the contents of the judge's talk and relevant reflection of society. These problems includes: the confirmation of the direct bring-up person of child doesn't fully reflect child's rights and interests, the amount of child support payment cannot be accurately and reasonably determined, the realization of child support payment is difficult, the respective rights and obligations of direct bring-up parent and non-direct bring-up parent is quite simple. Then the paper carries on a brief analysis.The third part is introductions and comments on foreign legislation and Hong Kong, Macao and Taiwan area of china's legislation about child support of divorced spouse. The paper carries on a comparative study of legislation of common law and civil law countries (including regions) on obligation of child support of divorced spouse, mainly expatiating and analyzing on such issues as legislative principle of child support, the confirmation of the direct bring-up person of child, the child support agreement, time limit of the child support and the burden and execution of child support payment in legislation of America, Australia, German, Russia and Hong Kong, Macao and Taiwan area of china.The fourth part is introductions and comments on our country's legislation on child support of divorced spouse. The legal norm in our country to regulate nexus of child support of divorced spouse is "Marriage Law of the People's Republic of China" and "Supreme Court's Certain Concrete Opinions on the People's Court to deal with Child Support Issues" in the year 1993.But the protection dynamics for the legitimate rights and interests of child is insufficient. The concrete manifestation is: certain provision terms don't reflect the principle of the best interests of the child, the confirmation criterion of the direct bring-up person of child exists defects, the confirmation criterion of the amount of child support payment is unreasonable, there exists gap between the restrictions on bring-up conditions of adult children and reality, the safeguard of execution of child support is inadequate. The fifth part is proposals on how to consummate the legislation on obligation of child support of divorced spouse. This part put forwards some ideas on the basis of comprehensive consideration of china's legislative and judicial practice combined with china's national conditions. These ideas has been built on exacting previous academic research fruit and using helpful legislations from abroad and Hong Kong, Macao and Taiwan area of china for reference. They mostly include: definitely establishing the principle of the best interests of the child as the principle of child support legislation, optimizing the confirmation criterion of the direct bring-up person of child, consummating and supplementing the confirmation criterion of child support payment, expanding the bring-up conditions of adult children in the burden time limit of child support, supplementing the safeguard mechanism of child support payment, synthetically utilizing many kinds of methods to safeguard the realization of child support payment.