A Study On The Subject System Of The Right To Visit In China From The Perspective Of Comparative Law

In 2001,the marriage law of our country adopted the concept of "Visitation right"for the first time and determined the system of visitation right.The visitation right system means that the party who does not directly raise the child in the divorce relationship has the right to visit the children.The establishment of the system is a reference from foreign advanced legislative system,which makes up for the blank of the marriage law in 1980,also meets the need of Chinese social development.It has important practical significance.Although the establishment of the system is a great progress in legislation,it should be noted that,after more than 10 years of judicial practice,in the actual operation of the system,something unreasonable exists.In this paper,the author chooses the subjective perspective of visitation right to study.According to the marriage law,the subject of visitation rights is strictly limited to the father or mother.This range is quite narrow,which ignores our common kinship of inter generational family.It is also deviate with the original intention of the establishment of the system of visitation right(protect minors' physical and mental health,let them enjoy the family love in the broken family relationship more).In order to improve the visitation right system and make it more in line with the actual need of Chinese social development,this paper argues that it is necessary to modify and improve the system of visitation rights.This paper starts from Chinese social development need and the actual situation of Chinese system of the right.With the right legal basis of visitation,focus on the analysis of deficiency of visitation right system in our country at the present stage.And use comparative analysis method,learn from foreign advanced legislative experience,and put forward a sound proposal.This paper focuses on the system of visitation right in China,shows the studies of the following parts:First of all,the introduction of the content,including the background and significance of the topic,the research at home and abroad,makes a brief introduction of the research methods and the basic content.Second,combining with the reality of Chinese social development,refer to the problems of the system of visitation rights.In this paper,with a case study,extend to the the core issue(whether grandparents have the legal qualification of the right to visit)from a practical case,and extend to the study of the system of visitation right.Third,introduce the system visitation rights theory systematically.Firstly,define the concept of visitation right.Secondly,this paper expounds the nature of visitation right,which is the unity of rights and obligations.Finally,discuss the value of visitation right system.Fourth,comparative analysis of the system of visitation rights at home and abroad.Due to the limitation of domestic legislative technology and legislative experience,this paper argues that it is necessary to learn from foreign advanced legislative experience to improve the domestic visitation right system.For this reason,this article uses the method of comparative analysis to sort out the legislative status of the representative countries of the continental law system and common law system.This part focuses on three aspects:the principle of legislation,the subject of rights and the subject of obligation.Fifth,the paper discusses the existing problems of visitation right system in our country.On the basis of the specific case analysis and comparative analysis,the author explores the deficiencies of the system of visitation rights in China,and draws a conclusion.Finally,on the basis of the analysis of the issues and problems,combining with the relevant legal basis and the experience of foreign advanced system,solve the problem.Through the research,this paper determines the subject of visitation right system should be perfect from three aspects:first,determine the best interests of the child;second,expand the visitation right subject;third,expand the subject of visitation right obligation.I hope this study can provide a useful reference for the legislation and judicial practice of visitation right system.