Research On The Legal Conflict And Legislation Of Foreign Parent-child Relationship

People crossing borders led to a sharp rise in the proportion of foreign marriage,foreign cohabitation,directly triggered a series of parent-child relationship concerning foreign affairs dispute case,performance for minor children caused by parents unknown uncertain nationality litigation,both sides of husband and wife for child custody to lodge a complaint,etc.,with advanced artificial assisted reproductive technology,for unable to confirm the family parent-child relationship,parent-child relationship identification is provided a means to confirm.The above disputes are caused by the failure to confirm the parent-child relationship.In order to amend and perfect the legislation of parent-child relationship,our country should comply with the relevant reform of parent-child relationship in the field of international private law and learn from the advanced ideas and measures in the legislation of other countries.In the substantive law of the confirmation of parent-child relationship,there are explicit legal standards for children's status of marriage and birth in the legislation of various countries,and most countries adopt push customization.For identification of wedlock identity,a handful of countries to establish the standard with claim system,the weakening and children born out of wedlock status discrimination the penetration of the principle of equality that many countries are system of civil code has been abandoned and the claim has breakthrough the traditional connotation of claim,more suitable for to protect the interests of the minors,for the purpose.In terms of the conflict norms in the confirmation of parent-child relationship,most countries take the law of the children's habitual residence and the law of the parents' home country as the applicable laws to determine the parent-child relationship in marriage;The identification of children born out of wedlock in accordance with the laws of the country of the parents or children.As far as the substantive law of parent-child relationship is concerned,the legislation of various countries in the world mainly presents in three legislative modes:parental right,guardianship and parental responsibility.The main content is related to personal and property rights and obligations."Parental responsibility"is a new legal concept in parent-child legislation,which has been widely recognized and applied in the European Union."Parental responsibility"emphasizes parents' responsibilities and obligations,and highlights the legislative value orientation of"children first",which is the general trend of future legislation on foreign-related parent-child relationship.There are two legislative models for the conflict norms of parent-child rights and obligations:one is the single legal application model,which generalizes the use of the term"parent-child relationship"and only formulates one conflict norm;The second is to distinguish the applicable model of law,strictly distinguish the relationship between parents and children and parental rights,guardianship system,respectively to develop different conflict norms.However,no matter what kind of legislative mode the countries choose for the parent-child relationship,the common pursuit of the legislative spirit is the same,that is,giving priority to the law of the children's habitual residence,followed by the application of the law to protect the interests of children.The legislative process of parent-child relationship in China is relatively slow,and there are still some deficiencies in the basic system.The confirmation,presumption and denial of parent-child identity relationship are blank points,and the content of parent-child relationship is only slightly mentioned.These legislative defects will undoubtedly cause the foreign-related parent-child relationship law application legislation and dispute resolution difficulties.China should clarify the principles of parent-child relationship legislation,implement the principles of"protecting the interests of the weak"and"the best interests of children"in specific legislation,timely fill the gaps in domestic substantive law,improve the basic system of parent-child legislation,and scientifically construct the conflict norms of foreign-related parent-child relationship closely connected with the substantive law.In the legal application of foreign-related parent-child relationship,firstly,the concept of"parental responsibility"should be adopted in legislation.Secondly,the specific rights and obligations between parents and children should be clearly defined and the applicable scope of applicable law should be clarified.The existing provisions can be supplemented by legislative interpretation or judicial interpretation.Finally,distinguish the parent-child relationship and guardianship system,and reasonable coordination of the two legal application rules.