A Study On The Revocation System Of Custody Of Minors In China

In recent years,cases of violation of guardianship of minors have occurred from time to time.And Cases where Guardianship revocation system is applied in judicial practice are also increasing.Problems about the guardianship revocation system have also become increasingly exposed in judicial practice.At present,the main provisions of the system of revocation of guardianship of minors in China are contained in the“Opinions on Certain Issues Concerning the Legal Handling of the Violations of the Rights and Interests of Minors by Guardians”,“the Law on the Protection of Minors ”and“the General Provisions of the Civil Code.” The “General Principles of Civil Law”is more detailed than the “General Principles of Civil Law”on the revocation of the custody of minors,but the problems in the system have not been substantially resolved.The scholars believe that China has not formed a complete system of revocation of guardianship of minors with old ideas,large discretion of judges and lack of State responsibility,which has a contradiction with the judicial practice in our country.In terms of academic research,there has been an in-depth study of China's guardianship system for minors.However,because the development of the guardianship revocation system in China is too late,the study of this system is still not deep enough.There are few books on this system.The suggestions for improvement about this system in academic research mainly stems from the extraterritorial experience,and there is no complete system to revoke the guardianship of minors.Therefore,the study of the system has practical significance and academic value.The revocation of the guardianship rights of minors is mainly divided into three phases according to the chronological order: the discovery and prosecution phase of the statutory situation,the application phase of thesystem during the litigation process,and the placement of minors phase of post-judgment.Find out the problems that exist in each stage of the system,combine the national conditions of our country,draw lessons from foreign legislative experience,and put forward corresponding improvement suggestions.In the discovery stage of guardianship violations,it is difficult to find guardianship violations because of lack of supervision and mandatory reporting.The provisions of the subject qualifications of litigation are not comprehensive enough,which is not conducive to prosecuting cases timely.At the trial stage,the clauses applicable to the guardianship revocation system are relatively clumsy and the court has a greater discretionary power,which is not conducive to careful and modest use of the measure.After trial,the settlement of minors is too single,in most cases the civil administration assume guardianship responsibility,which is not conducive to providing the best environment for minors.Moreover,the conditions and procedures for the restoration of the Guardian's custody are not sufficient to be detailed and comprehensive.In order to solve the above problems,it should be proceed from the theoretical aspects of legislation and the construction of specific systems.The principle of the best interests of the child and the principle of State responsibility should permeate the entire process of legislation and practice.In view of the shortcomings of the three stages,first of all,we should establish the system of guardianship supervision and compulsory reporting,and promptly discover the tort of guardianship.Secondly,improve the applicable conditions and methods for the revocation of custody.Guardianship revocation is the most powerful way for the state to interfere with parent-child relations by public power.Therefore,it is necessary to improve the precision of legislation and avoid excessive discretion of judges to ensure thereasonable application of parental revocation.Finally,the system of restoration of guardianship and resettlement after sentence should be improved.Finally,the system of restoration of custody and post-conviction placement should be improved.Diversifying placement means that the State should assume responsibility for the proper settlement of the issue of subsequent guardianship of minors.It should be made clear that the removal of guardianship is not the final goal of the system,and providing a sate guardianship environment for minors is the true meaning and value of the guardianship revocation system.