The Principle Of Minors’ Best Interest In Guardianship

The protection of minors’ interests is an important part of China’s guardianship system.With the continuous development of our society,the existing guardianship system for minors seems to have lagged behind and can not properly solve more new types of guardianship disputes.In China’s judicial practice,judges often invoke "the principle of the best interests of minors" of the Convention on the Rights of the Child to determine the ownership of child custody.As a party to the Convention on the Rights of the Child,our country should take care of and realize the best interests of minors in practice,but in the Civil Law,the Marriage Law and other departmental laws involving the guardianship system of minors,there is no express provision for this principle,so that some specific legislation concerning minors has not yet reflected the maximization of interests.However,if we want to pursue the best interests of the whole society,we must pay attention to the real needs of the minors as well as the minors,regard them as independent individuals,and give them legal respect and even special protection.The principle of the best interests of minors has been widely recognized in the world,and has become the most common and representative standard in dealing with guardianship cases of children in major countries of common law system and continental law system.Therefore,it is necessary for our country to adapt to the update of the times and to make the principle of the best interests of minors become the basic criteria for the protection of minors in our country,by highlighting the maximum protection of the interests of minors in the legal system and guardianship affairs.The first part of this paper is a general description of the principle of the best interests of minors,introducing the background and basic connotation of the principle of the best interests of minors.In the second part,by analyzing the four kinds of defects in the guardianship system for minors,we can conclude two reasons for the defects and point out the necessity of establishing the principle of the best interests of minors in the guardianship system of our country.The third part discusses the realistic basis of establishing the principle of the best interests of minors in the guardianship system of our country from two perspectives of legislative system and judicial practice.The fourth part sums up the experience that our country needs to learn from through the legislative practice of the main countries of common law system and continental law system.Finally,the fifth part of the article puts forward some suggestions on establishing the principle of the best interests of minors in our guardianship system.Firstly,it clarifies the constitutional status and profound connotation of the principle of the best interests of minors,and advocates the implementation of this principle in our guardianship system to guide legislation.Secondly,by perfecting the guardianship type system,standardizing the qualification of guardians,specifying the duties of guardians,and formulating measures of guardianship supervision,we can build the guardianship system of minors in China,and establish a guardianship system of minors that integrates family guardianship,social guardianship and state guardianship.In this way,the principle of the best interests of minors will no longer be formalized.It can play a real role in the guardianship system of our country,adjusting the legal rules,enriching the legal system,regulating social life,guiding family concepts,and truly guaranteeing the maximum legitimate interests of minors.