Research On Legislation Protection Of Rights To The Minor Children At Divorce Litigation

Interests is the right and benefit of the citizen which is protected by law.As a common society group of citizen,the minor children have the same juridical personality as the adult,and enjoy the equal interests also protected by law."Minor children" are defined which based on the age in the worldwide.Here are the children that under 18 years old in the family according to Chinese legislation.Besides the common interests,as the vulnerable group,minor children also enjoys special interests that fit themselves very well.Parents divorce,it seems just a simple change of the family members,but which may take great hurt to the minor children in their lifetime.How to create a better living environment to the minor children from divorce family? How to protect their interests and keep them grow up normally? These become urgent issues that should be faced and solved.According to Convention on the Rights of the Child,it's necessary that consider with the interests of minor children at the first place when in the course of litigation,and to establish this principle is the most effective solution to realize promote related litigation be completed in our country.Currently,Chinese litigation consist of Constitution,basic law & single law and departmental rules,in which the guardianship,support,visit and property protection regulation are be finely defined to protect the interests of the minor children,but some shortcomings still can be found.Such as,in guardianship system,the paternity is undistinguished.What's more,neither guardianship institution nor guardianship supervision system have been established.In support system,not give priority to consider the willing of the minor children,and no perfect system to support the payment;In visit system,the right of visiting that who have is limited,how to visit without godchildren opinion,when to stop visit need to be improved,especially,rights of visit is hard to be used.In property protection system,there is lacking of regular law system to support,not clear the property scope and management,even no supervision to the guardians on behalf of the property management.The legal deficiencies not only affect the interests of minor children,but also violate the principle of best interests of the minor children.As the experiences from France,Germany,British and U.S.A,we can see that no matter in continental legal system country,or in Anglo-American Legal system country,the principle of best interests of the minor children has been reflected from their guardianship,foster,visit and property protection regulation etc,the interests of minor children are protected effectively,which worth to be learned by Chinese litigation.To add the principle of best interests of the minor children as one of the basic marriage relationship principle in to the current law,it also can change the status of "parents first" when dealing with divorce proceedings that related to minor children.Meanwhile,if the measures can be taken that establish paternity and guardianship institution,clear guardianship qualification,complete supervision for guardianship,refine the standard and mode of support payment,establish support payment agreement supervision system,and set the payment expire period.Then give a clear definition of who could be visitor,what can be visit and how to visit.To confirm the ownership of the property for minor children,and establish the management,supervision,audit action and system to protect the property;on the other hand,to improve the guardianship,support,visit,and property save from the litigation,all of that are the best guarantee for minor children can enjoy their legal interests within the law.