Study On The Chinese Visitation Right Legal System

The visitation right originates from the Anglo-American legal system. Nowadays,countries all over the world generally enact the law on the visitation right, but thename thereof is different, such as the visitation and accommodation right, meeting andcommunication right, visitation right, intercourse right and so on. In china,“thevisitation right” is named. Article38of the current Marriage Law of the People’sRepublic of China specifies that:“after divorce, the father or the mother who doesn’traise the children directly has the right to visit the children, and the other party has theobligation to offer assistance.” It is a new legal system in the Amended Marriage Lawof the People’s Republic of China in2001, which has filled the gap of previous laws,improved the parent-child relationship, and implemented the divorce relief system. Itis a major breakthrough. The current legal system has been implemented for morethan10years, and there are many dilemmas and obstacles in legal practice, so it isnecessary to improve and revise it.There are about30,000words in this article and it has four parts.The first part mainly discusses the basic theory of the visitation right system.Based on different definitions of the visitation right by academics, combining relevantconcepts of the parental right, the guardianship, the custody right, this part defines theconcept of the visitation right. Besides, based on the concept of the visitation right, itslegal characteristics and value are discussed correspondingly.The second part researches the current Chinese visitation system in legislation and practice respectively. On one hand, based on the current legislation, this partanalyses the basic content of the visitation right including the subject, object,execution, suspension, resumption and implementation and so on. Meanwhile, thispart points out the theoretical dispute over the legislation. On the other hand, in theperspective of reality, combining the judicial practice, this part summarizes andconcludes the changing situation of the visitation right that has applied to the judicialpractice over10years, including more and more cases on the visitation right, differentkinds of disputes on the visitation right, and this part lists and analyzes the detailedproblems when the visitation right system is applied, for example, whether the subjectof the visitation right could expand or not, how to determine the reason for suspension,which legal relief could be used, etc..The third part mainly lists relevant legislations on the visitation system in thecommon law countries and civil law countries, and the content that is worth learningand absorbing would be obtained from it, including the trend of legislation on thevisitation right system and different regulations on the visitation right subject,execution method, trial, supervision and implementation in different countries.The fourth part introduces the legislation principle of the Chinese visitation rightand the principle of the best interests of the child. Facing the current dilemma, thispart specifies that the legislation principle of the visitation right system is for the bestinterests of the child; besides, in the perspective of improvement and adjustment, thispart puts forward a series of positive suggestions and measures: expand the subjectscope of the visitation right, respect and adopt the children’s opinion, establish theauthorization system of the visitation right, determine the legal reason for suspensionof the visitation right, confirm the new way to implement the visitation right,strengthen the security mechanism of exercising rights.