Legal Regulation Of Difference Protection On Minors In Family Lawsuit

Due to the physiological and psychological immaturity of minors,their ability to conduct civil acts is limited.The state compensates for this deficiency by establishing a guardian system.The natural best guardian of the minor,the parent,is its legal representative.Judging and participating in civil activities for the best interests of minors,participating in civil litigation to protect the rights of minors.However,in the family lawsuit,the minor children often do not have opportunity to participate to the case,the outcome of which will have a major impact on their future life;the subject matter of the family litigation includes personal relationships and property relationships,in which the property interests and emotions of parents and minor children The interests are intertwined,and the interests of the two are not completely consistent.When the interests of parents conflict with the interests of children,some parents would sacrifice the interests of the children for their own interests.However,China's current family law is still based on the premise that parents will actively protect the rights of minors.Civil procedure is still used in family lawsuit,and the discretionary power of the parties is excessively respected.Most minors are limited in their litigation capacity.The lack of an opinion expression mechanism,which leads to the protection of the interests of minors,depends to a large extent on the choice of parents for their interests.The disadvantages of this part of the minors whose benefits are not guaranteed are not due to their personal reasons,but to the family environment and social system,and the situation cannot be changed by their personal strength.In accordance with the principle of difference,the formulation of the legal system should take into account the interests of the most disadvantaged groups,so that they can also benefit from this system.Therefore,in the family lawsuit,the interests of minors whose interests may be infringed should be fully taken into account,and differential protection should be given to them so that the legitimate rights and interests of all minors can be guaranteed.Based on the above ideas,this paper is divided into six parts including the introduction to discuss the above issues:In the first part,the introduction adopts the trial mode and problems of family litigation as the starting point to determine the research object of this paper,and collates and comments the relevant literature as the research basis of this paper.The second part is the principle of difference in family lawsuit and the protection of minors.Firstly,it introduces the composition of parental interests in the family and the composition of the interests of minors.Secondly,it summarizes the particularity of family lawsuit and the relationship between parental interests and the interests of minors.Finally,it expounds the principle of difference and analyzes the legal,objective and social values of family lawsuit.The idea that the principle of difference should be applied to the protection of minors in family lawsuist provides a theoretical basis for the framework of the system of differential protection of minors.The third part is the analysis of the differences and reasons for the protection of minor's rights and interests in family lawsuit.Based on the investigation of the family lawsuit of the J Local People's Court in C City,the paper summarizes the general situation of the Family lawsuit in that Court including the differences between the parents' choice of the interests of the minor children,the reasons for the differences,and the judicial decision on the issues of upbringing,raising and inheritance of minors involving in the lawsuit to further clarify the reasons for the differences in the protection of minors.The main reasons include the alienation of parent-child relationship rights,the lack of participation mechanism for minors,the constraints of the law of the civil procedure,and insufficiency of support on child-care expense.The fourth part is about the system of differential protection for minor in extra-territorial family lawsuit.This paper uses a comparative study to sort out the differential protection system given to the minors in representative countries of the two major legal systems and the Taiwan province.Through the analysis,we can draw lessons from extraterritorial experience,practice and aim to provide a useful reference for construction of the differential protection system for minors in our nation.The fifth part is the construction of the differential protection system for minors in our nation.This section elaborates on the basic principles,the restrictions on parental rights,and the legal rules for differential protection.The differential protection of minors in our national lawsuit should follow the principle of priority for minors and the principle of balanced benefits for minors.Secondly,it should clarify the restrictions on certain rights of parents to avoid their use of superior status to infringe on minor children.Including moderate restrictions on the freedom of divorce and jus disponendi,and moderate inclination of property division.Finally,the legal rules for the differential protection of minors in family lawsuit are proposed.Differential protection includes the expansion of the legal capacity of minors in combination with procedural support,the comprehensive review of the court and the combination of family investigators,regular maintenance in combination with specific expenses,and the determination of guardianship depends on the age-level of minors,the right to visit should be judged in divorce cases,and conditionally reserves the inheritance share for the minors.The innovation of this paper is to obtain detailed and empirical materials through on-the-spot investigation of the status quo of family lawsuit in J local people's court in C city starting from the weak position of the minors in the family and the differences protection in the family lawsuit,and the reasons for the differences.Based on the analysis and the reference to the protection of minor in the family lawsuit,the author puts forward the system construction of the differential protection for the minors in the state litigation,in order to achieve the balanced protection of all minors.