| The system of visitation right in China has been established by the 2001 revised Marriage Law.It specifies the subject,the exercise,the suspension and enforcement of the visitation right,and then its further explanations have been made by the Judicial Interpretation of Marriage Law(I).The system of visitation right originated from the common law system,which is accepted by the countries all over the world.In contrast,the system of visitation right has been established late in China,and the legislation is relatively simple as well.The legislative intention of visitation rights in China is to allow the parent(who doesn’t get the children’s custody)to visit his/her children after the divorce,so as to protect the legitimate rights and interests of the minor children and their parents.Now with the changes of people’s marriage concept and the awakening of right consciousness,the visitation disputes are increasing year by year,but the relevant laws or judicial interpretations have no further amendments after the existing visitation right system implementing for more than 10 years.Many new situations and problems appearing in the lawsuits can’t be solved by the existing visitation right system.Therefore,it is imperative to improve our visitation right system.Since the establishment of visitation right system,many experts and scholars have conductedthe research,the author wants to stand on the basis of previous studies,compare the visitation right system in several countries from the perspective of comparative law,learn from the experience,analyze the defects of the visitation right system in our country,combine with the actual situation of China’s legislation,put forward reasonable suggestions to improve the legislation,make efforts to maintain ethics and harmonious society.In addition to the introduction,the thesis is divided into five chapters.The first chapter is an overview of visitation right.This chapter expounds the nature of the visitation right,the legislative principle of the visitation right system.It puts forward that visitation includes rights and obligations.The legislation of the visitation right should establish the principle of the best interests of the children.The second chapter is about the subject of visitation right.The scope is too narrow of the right and obligation subjects.Through a comparative analysis of the subjects in several countries mentioned,the author puts forward to expand the scope of right subject appropriately,which expands to the parent who does not to live with his/her children,the grandparents and other close relatives.Discussing whether children can be the subject of visitation,it is pointed out that children are not the subjects of visitation rights,but they have the right to require their parents to fulfill their obligation of visitation.Otherwise,the scope of obligation subject should also be expanded according to the scope of the legal guardian.The third chapter is about the exertion of visitation right.There is no specific provision for the contents of rights and obligations and exercise of visitation rights in our country,and it takes the principle of party autonomy.Through a comparative analysis in the several countries mentioned,the author puts forward to define the rights and obligations of the obligee and the obligor,classify the considerations for the contents of the visitation right,present the ideas of setting up the family court and introduce the third party investigation.The fourth chapter is about the restrictions on visitation right.The suspension is the only restriction form of visitation right in China.The statutory reason for the suspension of visitation right is too general.Through a comparative analysis in theseveral countries mentioned,the author puts forward to expand the scope of application subject of the restrictions on visitation rights,increase the restriction form of visitation rights,and refine the applicable circumstances of restrictions in order to increase judicial operability.The fifth chapter is about the implementation of visitation right.The problem of the implementation has always been prominent.Through a comparative analysis of the measures in the several countries mentioned,the author puts forward optimizing execution procedure,increasing execution measures and introducing social power to perfect the visitation right implementation. |
