Researches On The Litigation Of The Transfer Of Guardianship

In recent years,with the freedom of the marriage and the increasing number of divorce cases,after the alienation of mutual affection,both parties tend to fight the battle for the children.The battle has centered on the transfer of guardianship of their children.This kind of disputes finally converged to the court to seek litigation relief.At present,there are some blank in the procedural law about China's legislation on transfer of teenagers' guardianship,which brings difficulties to practice work.How to understand the procedure which the transfer of guardianship case should take? Whether the subject matter of the litigation of transfer of guardianship should include pupillus himself? In addition,as the determination of the adjudication determines the stability of the relationship to the guardian's life,how to define the res judicata of the adjudication? The further study of the series of problems is necessary.This article was led by this line of thinking,trying to sort out the relevant theoretical issues which the litigation of the transfer of guardianship involved.The whole passage consists of five parts,which all together amounts to about 30,000 words.The first part introduces the present situation of the transfer of guardianship cases and the defects of the current legislation both on the substantive law and the procedural law.The second part discusses the controversy about the procedure selection of the transfer of guardianship cases.In fact,the transfer of guardianship dispute is aimed at establishing the foster relationship with the pupillus,which essentially belongs to litigation of formation of status relationship.From the perspective of the theory of civil procedure,it's proper to apply judicial proceedings to the transfer of guardianship cases.The third part discusses the subjective and objective factors of the litigation of the transfer of guardianship.In terms of subjective factor,the author believes that the pupillus owns the right to begin the litigation of the transfer of guardianship,as the adjudication is related to the pupillus' s personal rights and property rights.In addition,other problems of the subjective factor are also analyzed.In terms of objective factors,the author talks about the litigation object on the basis of litigation of formation.The fourth part mainly discusses the effect of the adjudication from the perspective of the subjective scope of res judicata,the criterion time of res judicata and the pre-definitive effectiveness.The fifth part put forward some suggestions about the practice of the transfer of guardianship cases.First is the idea of building the personnel procedure.From the perspective of the theory of civil procedure,it's proper to apply judicial proceedings to the transfer of guardianship cases.The second is reference for children's lawsuit representative system to deal with the situation in which the pupillus begin the litigation of the transfer of guardianship.Finally,make some supplementary about some principles and the procedural guarantee of adult guardianship.