Visitation Rights Related Legal Issues

Marriage is the premise of creating a family, and family is the cell to constructing the society. From the perspective of the social background, the divorce rate is going up year by year, posing severe test to parent-child relationship. Disputes on visiting children between the divorced parents emerge frequently, which not only affects the affection between parents and children, but also becomes one of the factors of social instability.The newly revised Marriage Law includes the visitation right into the legal provisions for the first time, and henceforth fills the blank in China's visitation right system, and establishes the status of the visitation right systems in Marriage legal system, which adds another layer of legal protection for the healthily physical and mental growth of minor children in divorced families. However, the actual effect of the visitation right system in China hasn't reached the desired legislative status due to the own flaws and shortcomings of the visitation right system in China. Thus strengthening the study of the visitation right systems to promote the perfection of visitation right system in China boasts realistic significance.This thesis starts from the theoretical foundation of the visitation right system, revealing the meaning, characteristics and significance of the visitation right. For lots of disputes on the visitation right in academic circles, this thesis then analyzes and comments on them detail by detail, and further proposes the author's understanding of the nature of visitation right-concept transformation:from right-based to obligation-based standard and on this basis redefining the concept of visitation right.Secondly, the thesis employs the comparative analysis to analyze the legislative status in China, and reveals defects of current visitation right system such as narrow main range of visitation right, unclear provisions about the exercise from of visitation right, the suspension of statutory subject matter being too broad, procedural issues existing in the restoration of visitation right, the enforcement provisions of visitation right lacking of maneuverability, and so on. This thesis also conducts comparative analysis of the legislative concept and legal provisions of the visitation right system in some countries that belong to the continental law system and Anglo-American law system, further revealing the significant value of learning from the foreign experience to complete our visitation right system.In the end, this thesis proposes to borrow ideas from abroad successful experience, and to combine them with China's specific national conditions and judicial practice, aiming at achieving the greatest interests of divorced children and the healthy growth of juveniles. And the thesis suggests to redefine the subject of visitation right through legislation, expanding the scope of visitation subject, and paying close attention to the dominant position of children; it also suggest to refine the exercise forms of visitation rights, the main contents of suspension and the restoration situation of visitation right, to improve the efficiency of enforcement, to explore effective enforcement means, to complete the system of assist implementation, to set up the system of change the guardianship, to establish the non-lawsuit special procedures, and to introduce compensation system for mental loss.