Research On The Confirmation System Of Parent-child Relationship

From the relevant provisions of the current law,China still follows the traditional presumption system of legitimate children.Theorists advocate the legislation to establish the presumption and denial system of parent-child relationship,the system of parent-child claim.However,in the practice of the court to deal with parent-child relationship dispute trial thinking is the use of traditional birth planning system,or the use of a unified identity recognition system for parents?How to combine the judicial practice in the legislation to build the system?For this question,the article is mainly from the following five parts:The first part summarizes the basic theory by traditional presumption of legitimacy system and the presumption system of parent-child relationship.Based on the draft of the"Green Civil Code" and "the draft of the draft of the Chinese Civil Code",the author summarizes the presumption and denial of the traditional children and their children,the summary of the system of quasi-recognition and recognition of illegitimate children,and the system of parent-child presumption and denial An overview of the system.The comparison and analysis of the two legislative proposals shows that both are only valid for the identity of the natural child and are dependent on the marriage to presume the father's identity.The parent-child presumption system is similar to the system of births,except that the presumed object is extended to the children born to unmarried men and women,and the object of forced confession is reduced to children born to occasional sexual behavior(such as adultery,rape and other acts).The second part investigates the legislation and judicial status quo of the system of parent-child relationship confirmation in our country.The article will be sorted out of the case for different litigation purposes are divided into "parent-child relationship confirmation litigation","parent-child relationship denial of action" and artificial parent-child relationship confirmation.Through the analysis of the court ruling found that:practice has been the principle of parent-child relationship recognition and some norms,and from the formal point of view,the practice is to follow the traditional system of birth planning,but its essence is similar to the French law and the United States law Practice,is not similar to the theoretical body of the legislative system.In practice,the mother's identity follows the reproductive facts.The method of confirming the identity of the father includes a variety of marriages,birth certificates,presumptions based on the likelihood of conception,the parties promise,the court to confirm the way and so on.In the affirmative action of the parent-child relationship,the subject of the presumption of presumption is limited to the court and the presumption is limited to the proceedings,and the nature of the compulsory claim is no different from the court's judgment.In denying parent-child relationship litigation,denials include not only the denial of the father's identity but also the denial of the mother's identity and the parent-child relationship established by voluntary claimThe third part is the investigation and choice of the legislation construction of the system of parent-child relationship confirmation.Study and analysis of the United Kingdom,Germany,France,the United States outside the country parent-child relationship confirmation system.Through the study of the article found that:the four countries in the"best interests of children" under the knowledge of the parent law under the domestic legislation reform,the use of a unified model of the unified identity of the parents to confirm the system,and gradually eliminate their children and illegitimate division,There are many ways to confirm the identity of a parent,marriage is only a way to confirm the identity of the father,and no longer confirm whether the child has a legitimate legal status of children.Blood is only a testament to determining the identity of the father rather than an absolute factor.The system content has also undergone tremendous changes to a unified parent identity confirmation system instead of the marriage proposal system to revoke the system instead of denying the system.The fourth part,the reflection of our country parent-child relationship confirmation system of the existing regulations.Combined with the first part of the scholars to build legislation and the second part of the reform of foreign countries to reflect the content of the existing provisions of the lack of reflection.Including the construction of the principles of legislation,system content and other specific content.Through the existing legislation,it is argued that since the idea of establishing a unified parental identity confirmation rule does not distinguish between whether or not the parent has a marital relationship uniformly applicable to all children,the function of the denial system is to make up for the correction of the parental identity recognition rules False presumption,then the object of the denial should also include all children,without the need to set up a separate system of forced claims.The standard of confirmation of parent-child relationship of artificial childbearing can be used to confirm the standard of parent-child relationship of natural childbearing and combine with the practice of judicial practice to perfect the identification of parental identity of surrogate child.The fifth part is to give some suggestions on the confirmation of the parent-child relationship.It is proposed that the best interests of the protection of minor children shall be independent from the interests of women and the elderly,as an independent principles specified in the form of law;Unified regulation:an individual who has established a parent-child relationship in accordance with legal regulations,and voluntary acknowledgment of paternity,and the adjudication by the court;The law clearly defines that a legal mother is one who carries a child to birth;And the father-child relationship is established between a man and a child by:a presumed father,a voluntary acknowledgment of paternity,an adjudication of the man's paternity.Additionally,the article tries to improve the confirmation and denial parentage action,which fully adapt to the article ? of interpretation(?)of the marriage law.