Legal Research On Intergenerational Visiting Rights

Article 38 of the marriage law amended in 2001 establishes the visiting right system for the first time,which ensures that children do not lack emotional communication with the party who cannot live together due to their parents’ divorce.This system is conducive to the healthy growth of children and can alleviate family conflicts to a certain extent.It is conducive to the healthy growth of children and can alleviate family conflicts to a certain extent.However,the intergenerational visit dispute is common in China,because the law does not clearly stipulate that grandparents have the right to visit their grandchildren,and the court’s ruling on this kind of dispute is inconsistent.In the author’s opinion,this issue deserves further study,and the benefits of grandparents’ intergenerational visits should be guaranteed through reasonable and correct applicable legal provisions within the framework of the existing legal system.The problem of refereeing caused by the dispute of visiting visits originates from the different understanding of the nature of the right to visit.Firstly,we must explore the nature of the right to visit.Only by first defining the nature of the right to visit can we further highlight the theoretical basis for the protection of visiting way.Regarding the attribution of nature,it mainly analyzes from two aspects.First,it analyzes the relationship between the right of visiting and custody and raising.The second is to analyze the relationship between the right of visiting and the relationship between parental rights and relatives.Although the dispute of visiting rights is intertwined with custody and maintenance disputes,it is not included in custody or custody,nor should it be used as a theoretical basis for visiting rights through expanded parental rights.The right to visit belongs to one of the contents of the relatives,which is based on the blood relationship between close relatives.Based on the current law,the scope of the close relatives is not only(external)grandparents should be allowed to visit the underage(outside)grandchildren,and the adult brother and sister should also have the right to visit the younger siblings who do not live together.In the context of the current Marriage Law,which only provides for divorced parents to have access to minor children,it is necessary to resolve the legal interpretation path to protect the right to visit.In practice,there are judges who follow the principle of public order and custom or the application of Article 38 of the Marriage Law as an explanation.However,the principle of public order and goodness is only applied as the principle of negative control.It cannot be supported by the expansion of the interpretation of Article 38 of the Marriage Law.The conclusion.Intergenerational visit disputes should follow the "habits" to apply the "customary law" "custom" as the source of the law.That means,in the process of applying the law to protect the right to visit,when the Marriage Law as a special law does not stipulate the visiting rights of grandparents,it should continue to look for the provisions of the general law.According to Article 10 of the General Principles of the Civil Law,civil disputes shall be handled in accordance with the law;if the law does not stipulate,the habits may be applied,but they shall not violate the public order and good customs.Therefore,according to the provisions of this article,it is possible to apply the habits and combine the local conditions of China to provide reasonable protection for the intergenerational visiting rights of the(outer)grandfather.As a right that can be exercised,the right of visitation through different generations should be analyzed in terms of its characteristics,mode of exercise,etc.,after clarifying the necessity of protecting the right of visitation through different generations and the basis of legal argument,and the exercise of the right should be limited to a certain extent,otherwise it is easy to lead to the abuse of the right.The right of intergenerational visitation is bidirectional.In practice,it is often mentioned by the elders,but it cannot be concluded that it is unidirectional.In the process of exercising the right of intergenerational visitation,in addition to disadvantageous to the physical and mental health of the children,the right of visitation of the grandparents should also be discontinued if there is a situation that damages the right of guardianship of the other party.Even after the establishment of the right of intergenerational visit in the future civil code,when there is a dispute between other close relatives and minors in practice,"habit" still needs to be applied as the source of the law to judge cases correctly,which is also the significance of this study.