Research On The Construction Of Intergenerational Visitation Right System In China

In recent years,there has been a positive response to grandparents visitation rights among the academia in China.Usually,it is mainly discussed in the part of the subjects to the visitation right who should have access to the children.Such cases with respect of intergenerational visitation had heard at court and many of them were supported by judges.However,the judgments were given in the lack of relevant laws and regulations and the corresponding protection procedures.Therefore,the realization of grandparents visitation should be improved comprehensively and systematically.Part one of this thesis,except the preface,defines the concept of the grandparents visitation,analyzes the relevant theories at home and abroad and then clarifies its legal nature,that is,the independent right of relatives based on the relationship between minors and grandparents.Furthermore,this right conforms to the social ethics of our country,meets the needs of children's best interests and is conducive to improving the system of rights and obligations in family relations.Part two discusses that there are no effective implementation of the laws that regulate the grandparents visitation in China.Given the need of hearing cases in judicial practice,I summarize the present situation of legislation and judicial in China and try to find out the existing issues.Such as the unclear basis for the trial of cases,the limitation of application conditions and the subjects.To solve the above problems,part three of this paper makes an investigation of the foreign visitation right,taking the countries with perfect design of the intergenerational visitation system as the reference.Both the United States and Britain,as well as Germany and France,have more perfect legal provisions and supporting judicial procedures.There are many common points in family cases involving human emotion,so we should draw on the beneficial legislative and judicial experience of foreign countries on the basis of our country's national conditions,in order to put forward some legal suggestions on the construction of the system of visitation right of alternate generations in our country.For the establishment of the whole system,part four points out that we should define the scope of cases which are applicable,expand the subjects who can apply for such right,establish the system of right evaluation and the way to initiate the right relief organism.The most important is to recognize the status of minors as the subject,and to determine the function of agent in the course of realization of right according to the situation of child's ability of will.The system of independent agent who only fight for minors' interests is introduced,which is different from system of statutory agent.we should make clear any change related to the visitation right and provide corresponding relief,which mainly by means of adjusting the time,place and ways of exercising visitation right.Combine the pre-trial psychological counseling with mediation to solve the conflict effectively.Put forward the trial visitation plan and pluralistic way to exercise the right to find the best scheme to realize the right.During the trial,the court may collect evidence ex officio and combine the evidence which is provided by the party who claims the right to prove that the visitation is beneficial to both parties.In the process of the execution of the judgment,the condition of suspension should be clear.As to the one who does not abide by the visitation arrangement made by court,he or she may be forbidden to exercise visitation right.For one or both parents who impede the realization of the intergenerational visitation right,compulsory measures may be taken,for example,measures of fine,detention,as well as the implementation of the system of "broken promises" list.