Research On The Disavowal Of Parenthood

Identity relationship between parents and children is confirmed and adjusted with law.The parent-child relationship denial system is none other than an important system to adjust the legal status of parents and children in the field of parent-child law.There are still no clear provisions for parent-child relationship denial proclaimed in current Marriage Law in China which leads to serious absence of state in legislative structure and contents of parent-child law.In order to develop much deeper discussion for this question,the paper adopted comparative analysis method and made specific comparative research on parent-child relationship denial systems in civil code of Germany,Japan,Ethiopia and other countries.Based on China’s national conditions,it is an attempt to argue how to establish parent-child relationship denial system in China from the perspective of system improvement and realistic demand.At the same time,it made a basic conception for the party with the right of denial,the counterpart with the denial litigation,the reason of denial,period during which the right of denial was exercised,legal consequence of identity denial and other questions in the System so that it was expected to have some benefits for research and legislation of the system.The paper were divided into four parts to conduct discussion for the above-mentioned questions.The first part was the theoretical overview for the parent-child relationship system.This Part would take concept and type of parent-child relationship,overview on parentchild relationship establishment system and denial system of parent-child relationship as an order and conduct research in the paper by method from the easiness to the difficulty.Through introduction and exposition for relevant system,it drew forth concept,nature and the basic principle that denial should obey in the parent-child relationship denial system.With regard to nature of the denial litigation for parentchild relationship,the authored agreed that the denial litigation in parent-child relationship first confirmed whether there was identity relationship or not.In terms of nature of the Right,it had nature of right of formation.Therefore,the denial litigation of parent-child relationship had natures with identify of the appeal and right of formation.Therefore,the paper from demand of social reality in China,put forward that system establishment should follow to the basic principle,namely the principle of the best interests for minor children,the principle of equal protection for children and the principle of balance between blood kinship and identity stability.The second part was the analysis on judicial practice of parent-child relationship denial.The paper mainly adopted empirical research method and sorted out the cases related to parent-child relationship denial in recent years in order to display judgment idea and tendency for such type of case in different courts.With comparison and analysis of the cases,the paper summarized three important questions urgently to be solved: First,It was not quite clear in limitation on scope of the party with the right of denial in parent-child relationship in China and there were different confirmations in practice;Second,Article II in the Judicial Interpretation of Marriage Law(III)referred to the concept of "indispensable evidence" to deny parent-child relationship.But there was no much clearer judgment standard for to what extent it was "necessary".Third,In cases of parent-child relationship in China,it was extremely common for litigant to apply to the court for paternity test.But Less than 3% cases finally was completed paternity test in the process of trial.The initiation of paternity test relied too much on willingness of litigants which was against investigation of the case.The third part was research by the comparison method for parent-child relationship denial system.The paper mainly sorted out relevant legal provisions of parent-child relationship denial in Germany,Japan and Ethiopia three countries.Through analysis and comparison on similarity and property of the System in countries,it got valuable experience in order to construct parent-child relationship denial system suitable to China.China lay in essential period in the construction of the rule of law,and development and improvement of laws had closely linkage with study,experience and absorption from foreign law and foreign legal theories.Throughout relevant laws and regulations in above-mentioned countries,the basic elements of parent-child relationship denial system mainly included proposal of denial,scope of the party with the right of denial,period during which the right was exercised,procedure requirement on enforcement of right and other contents.The fourth part was establishment of parent-child relationship denial system in China.The author expounded specific content to establish parent-child relationship denial system in future civil code in China in this part.The added relevant content of the System abrogated differentiation between children born in wedlock and children born out of wedlock and called them natural children with exception which was of active significance to facilitate reality on children’s equal protection and was also irresistible trend in development of parent-child law over the world.In addition,China should confirm presumption system of parent-child relationship while building parentchild relationship denial system.Because the identity confirmation among parents and children was the premise to have obligation between parents and children and also was the prerequisite to deny natural children identity.The Parent-child relationship denial system was specifically established with mainly four aspects.First,the party with the right of denial should be restricted as parents and children.Second,the reasons of denial mainly meant that two parties did not have sexual intercourse during the possible conception or could exclude biological relationship with children through other scientific methods.Third,period during which the right of denial was exercised should be counted from the date on which the plaintiff knew or should have known that it was not birth date of the child.The length of this period should be stipulated as one year.Fourth,legal consequence of parent-child relationship denial.Parent-child relationship denial would give rise to dual changes in identity relationship and property relationship.In terms of identity relationship,after children was confirmed as nonpaternity,the original presumed father did no longer assume any obligation.In terms of property relationship,the presumptive father had rights to claim ever paid alimony.If he was defrauded to rear a child,he had rights to require corresponding compensation for spiritual damages.