On The Legal Subject Status Of Children In Divorce Law

Children as a natural person has the status of subject of civilian life, China's Civil Law and Civil Marriage Law of the main body of the child's eligibility to be sure, and how to protect their dominant position in detail the provisions. However, when parents divorce, children were reduced to the status of the object.In this paper, children in divorce law, the starting position of the object, in theory, discusses the reality of the situation properly, proposed and demonstrated for children in divorce law should have a dominant position, and then point out how the realization of its dominant position, and adopt more analysis method combing the dominant position of children and other countries in international law embodied in the law, the article concludes with specific legislative proposals.In addition to the introduction and conclusions of this paper, the body is divided into four parts, a total of approximately 30000 words.The first part of the establishment of children in divorce law, the need for principal status. First point out that the parents of children of divorce, only to have the object status of reality. Lifting system in marriage there is too much emphasis on the interests of parents, children's interests are not sufficiently protected against the problem; in determining the party's lack of direct support the full participation of the children did not fully consider the wishes of the children; visitation rights law simply provides parents with a child visitation the rights of the children did not visit their parents and other close relatives the right to show the law is from the perspective of parents and the community to locate the visitation right perspective and its significance; in divorce, division of property, my property, the existing legislation on minor children nature of the definition and disposal was a blank state, resulting in minor children's property without proper protection of the law. Then pointed out the serious impact on the status of legislation protecting the interests of the child and the theoretical discussion of children in the Divorce Act should have the dominant position.The second manifestation of the dominant position of some of the children and implementation. Children's main aim is to establish the status of the provisions of the enjoyment of their specific rights and obligations, while children can take the initiative to the realization of various rights under the law, on the other hand, in its rights have been violated may seek protection of the law. Because children are the limited capacity or no capacity for civil conduct, can not own behavior to achieve its dominant position, in general, civil life, children, the dominant position of the agent behavior through their parents can be achieved. In the divorce involved a variety of legal relations, the child's interests and the interests of parents, there is a conflict, the parents of the agents will likely be against the interests of children, so parents should limit the powers of attorney, there is a need, oversaw the introduction of parental custody agent behavior, with parents of children in divorce law to achieve the dominant position.The third part of the divorce, children in the dominant position in the international conventions and relevant national laws reflect their protection. International conventions and foreign law, by establishing a child's best interest principle, clearly a child is legally the status of a subject; and to give the children's enjoyment of the rights in divorce; in protective measures, through substantive examination of the divorce agreement, divorce by agreement of the appropriate restrictions and the establishment of representative systems of children, to protect the interests of children. This section summarized from a comparative point of view of the dominant position of children in divorce law in international law and Europe, the United States and France in the performance improvement of China's legislation provides the material.The fouth part of China's Law on Legislation perfect. For the problems in our legislation the article made specific legislative proposals. Specific recommendations are: to establish the child's best interest principle, the recognition of children of divorce has a dominant position; by providing a variety of specific procedures to restrict the registration of divorce; would be consistent with the principles for determining the best interests of the children after divorce the principle of the direct care side; visitation right system should reflect the vision of their own children; additional children, in order to protect the interests of the child representative.