Research On The System Of Revocation Of The Guardianship Of The Minors

In recent years,news reports about minors being victimized by families have occurred from time to time,and family protection for minors has received increasing attention from all walks of life.In the case that the guardian fails to perform custody,performs improper custody,or abuses custody,the revocation of custody shall be determined from the legislative and judicial aspects.This paper mainly adopts the method of comparative analysis,starting from the relevant provisions of the current legal system in China on the “revoked custody of minors”,and adopts the provisions of custody of minors in the General Principles of Civil Law as the entry point to guard the minors.It sorts out and analyzes the applicable conditions and rules of the custody cancellation system,and focuses on collecting the legal provisions and judicial status of the custody system for custody of minors in the civil law system and the British and American departments,and dialectically analyzes and combines them.The advanced legislation of various countries put forward their own suggestions for perfecting the construction of the custody system for custody of minors in China.This article is divided into four chapters,and the whole follows the logic of asking questions—analyzing problems—solving problems.The first chapter of this paper describes the social status of the protection of minors in China.Through thecase,it lists the main types of minors who are harmed by families in China,and then analyzes the current legislation and judicial aspects of China.The system of custody of minors in China What are the problems? Before the introduction of the "Opinions" by the two high schools in 2014,although there were legislations in the General Principles of the Civil Law,the judicial practice of the abolition of custody of minors in China was basically blank.The introduction of the "Opinions" is China's child protection.A major leap in history,the relevant provisions of the "General Principles of Civil Law" have also confirmed the civil law on the revocation of custody of minors.What followed was the emergence of a series of typical cases.Despite this,there are still some problems in the judicial means of handling the custody of minors in China.How to optimize the details of the legislation,improve the judicial mechanism,and construct a mature system of minor custody is the central topic of this paper.The second chapter of this paper studies the theory and concept,and discusses the legal basis of the custody cancellation system,which is an important theoretical basis of this paper.Tracing back to the source of historical development,the guardianship system originated from the ancient Roman law,gradually evolved from the "defender" of patriarchal and husband's rights to the modern guardianship concept based on the interests of the ward.The concept of guardianship has a broad concept and a narrow concept.It has the difference of parental rights and guardianship.Due to the extended needs of the argument,this paper takes a narrow sense of guardianship,that is,“a child who is not under parental authority or is declared The ban on the birth of a person,the system of private law for the care of physical property." Due to the needs of the modern guardianship system,the custody cancellation system also came into being.After analyzing the legal subject,object and legal relationship,the author concludes that the custody of the custody refers to when the guardian fails to perform the guardianship duties or performs improperly,resulting in the infringement of the rights and interests of the ward's person and property.Temporary or permanent exemption of guardianship from the public authority and deprivation of its authority,and designation of a new guardian system.The jurisprudential foundation of such a system is mainly in two aspects.On the one hand is the influence of guardianship."The guardianship system for minors has changed from private kinship guardianship to public legal guardianship,and tends to be public guardianship." Throughout the legislation of various countries,public power intervention has become an inevitable trend in the development of guardianship system.Public power,as a remedy for family defects,is conducive to protecting the rights and interests of minors and maintaining social stability.On the other hand,the principle of "maximizing the interests of children" has become the guiding principle of juvenile custody legislation in the world today.In the 21 st century,under the broad background of international human rights,the rights,status,protection and development of minors have become a worldwide theme of common concern to the international community.More representative,such as the 1924 Geneva Declaration on the Rights of the Child,the 1959 United Nations Declaration on the Rights of the Child and many other international legal texts on the protection of human rights,there are about the protection of minors.On November 20,1989,the General Assembly of the United Nations adopted the Convention on the Rights of the Child,which is the world's first international legal document dedicated to the protection of children's rights and a milestone in the history of human civilization.It is of great significance in recognizing children as the subject of rights,the content of children's rights,and the impact on the domestic legislative practice of the State party.As the basic system of protecting children's rights,the guardianship system for minors is bound to be deeply influenced by the Convention.At present,there are 196 States parties to the Convention on the rights of the child,and China is also a member of the Convention.In the family law system of our country,"the principle of protecting children's legitimate rights and interests" is one of the legislative guiding ideology and important principles of our country's family law.Therefore,the establishment of a systematic and enforceable system of revocation of guardianship is also the embodiment and demand of the principle of the rule of law to maximize the interests of minors in our country.The third chapter of this paper makes a comparative analysis of the abolitionsystem of juvenile guardianship in foreign countries,which is the focus of this article.The author has studied the current legislation and judicial situation outside the country,summarized and analyzed the provisions of the revocation of guardianship system in six representative countries of the continental law system and the common law system.In civil law countries,parentage and guardianship are separated,and the guardianship of parents based on consanguinity is stipulated separately from the guardianship of the third person or social institution,which is worthy of our reference and study.German legislation on parentage and guardianship is more detailed,has established a relatively complete system of parentage and guardianship,mainly reflected in the "German Civil Code" and "Child and Juvenile Assistance Act," this paper mainly from the perspective of the system of parental guardianship revocation.The abolition of guardianship in parental relations in German legislation is embodied in the deprivation of parental care rights.From the perspective of the best interests of both the person and property of the minor children,it stipulates the situation of damage and the legal measures that should be taken.It also stipulates the punishment modes to varying degrees and deprives the parents of care.At the same time,other rights based on parental rights are retained,which is more conducive to the interests of minors.At the same time,the German Youth Welfare Bureau,as a public authority involved in the child guardianship system,plays an important role in the guidance and supervision of the minor guardianship system.France takes a gradual step-by-step approach in the rescission of parental power,making the act of rescission more targeted and hierarchical,which is worth learning from.When a minor is in danger at home,educational remedies should be taken into account as a transition to the withdrawal of guardianship,so as to maintain the kinship between the minor and his parents as far as possible,and to provide protection for the healthy life of the minor.Japan's guardianship system is similar to Germany to a certain extent,but more advanced than Germany is that it stipulates that when the cause of parental damage stops,the lost rights can be restored by request,which has a certain reference value for China,which is also an Asian country.Common law countries are the countries of case law.Regarding the system ofrevocation of guardianship,it is mainly embodied by different cases,decrees and government regulations.Anglo-American law system countries attach importance to the protection under the "emergency" situation,in the case of minors' right are damaged,public power can be greatly involved in the process of child protection.Whether it is the "Emergency Protection Order" in Britain,the "TPR" in the United States,or the "Request for Assistance and Reporting" in Australia,all stipulate that when children's rights are urgently violated and in danger,the public authorities have the right to temporarily place children in their family environment,which reflects the public power for children.The strong intervention of child custody is worthy of our dialectical study.In addition,Anglo-American law system countries emphasize the role of third party supervision,supervision of the protection and protection of minors,has formed a concept of the whole people.Under U.S.law,anyone has the right to report child abuse or neglect to the Child Welfare Agency,and in Australia,police,teachers and health care workers are even obliged to report or be punished.This system is of great reference significance to China,which is influenced by the traditional concept of "housework".It makes it more effective for the third party not only to help the victimized children out of humanitarianism,but also to provide legal basis for such assistance,so that the custody of minors can be exposed to public supervision.Correct the occurrence of improper guardianship.In the first three chapters of the status quo analysis,theoretical retrospect,comparative study,the author in the fourth chapter of this article put forward to optimize our country's minor guardianship revocation system.First of all,it is suggested that parental and guardianship rights can be separated.Considering the importance of family environment for children,the legislative guiding ideology of "do it by necessity" should be established for the guardianship of parents based on the kinship of parents.The deprivation should be gradual,recoverable and endowed with the law.The third-party guardianship should be distinguished,so that the system of revocation of guardianship can be more in line with the needs of China's national conditions in terms of concept acceptance and judicial difficulty.Secondly,we should establish a specialized public authority that undertakes the duty of guardianship andsupervision of minors.Referring to the "Youth Welfare Bureau" in Germany,the "Child Welfare Bureau" in the United States and the "Director of Community Services Department" in Australia,the author suggests that in China,the "Minor Protection Center" under the Civil Affairs Bureau should be taken as the starting point,and the jurisdiction should be established according to the administrative jurisdiction and county,and in the next jurisdiction(i.e.town,township,and county).Streets and communities)set up a "minor protection office" to form a systematic supervision system for minors guardianship,with first-tier cities as the pilot,gradually introduced to the whole country.The establishment of a unified supervisory body is conducive to improving the cross-management in judicial practice and the mutual transfer of responsibilities.As the responsible agency for the protection of minors,the "Minor Protection Center" can take more initiative to undertake the supervision and guidance work within its jurisdiction,uniformly dispatch and integrate resources from all walks of life,and truly To implement the national protection function of minors' guardianship.At the same time,a minors protection tribunal of local courts may be set up to handle cases related to guardianship.The third point is to perfect and optimize the reporting mechanism.Give the whole people the right to report infringement of minors in emergency situations,establish a public reporting platform,at the same time,for kindergartens,schools,hospitals,social work institutions,such as the establishment of reporting obligations and informed non-reporting punishment rules.The above three points are mainly from the legal basis and state supervision level optimization suggestions.In view of the specific implementation of the system of revocation of guardianship,the author also suggests that we can set up certain preconditions for the revocation of guardianship,and refer to the French practice,carry out progressive punishment,which is more conducive to the healthy growth of minors physically and mentally.At the same time,after the revocation of guardianship,how to properly and long-term placement of minors,but also our country's current judicial practice is missing part.There is a new breakthrough in the provisions of the General Provisions of the Civil Law,which affirms the possibility that other individuals or organizations willing to serve as guardians may become guardians.Butin the specific judicial process,we need to further refine it from the perspective of establishing foster family database and carrying out certain economic subsidies.In addition,considering the minors to be included in the application subject of the withdrawal of guardianship,the establishment of a child protection mechanism in advance,etc.,can also be used as a minor guardianship system optimization measures.To sum up,China's minor guardianship system has a relatively short history,whether from the guardianship concept,guardianship legislation,or legal research,are lagging behind the needs of the development of the international community today.From the point of view of the revocation of guardianship system,the author studies and compares the advanced legislation and judicial situation in foreign countries,and puts forward some ideas and suggestions for the improvement of the guardianship system for minors in China,expecting to throw a brick to attract jade.