How To Solve The Lawsuit Of "right Of Intergenerational Visit": Legislative Confirmation Or Judicial Judgment

One of the characteristics of China’s marriage and family culture is the high degree of emotional connection between grandparents and grandchildren.Even when parents are divorced or die,the desire of grandparents to see their grandchildren remains strong.The stronger the emotional need of "the right to visit another generation",the greater the possibility of disputes.However,because of the lack of legal basis for the "right of intergenerational visit" in the trial practice,the judge encountered great challenges.It is worth noting that although there have been several cases in China,the "right of intergenerational visit" is still a discussed academic concept,rather than a legal right concept.At present,the academic circles are in an either-or debate about the right of intergenerational visitation,that is,to confirm the right by legislation or by judicial adjudication.The author takes 16 cases published on China judgment document network as the analysis material,USES case analysis method and literature analysis method to directly present the case and judgment information in the form of table,summarizes the dispute trial situation of "the right to visit another generation",and focuses on the problems existing in the judgment of such cases.Since "the right of intergenerational visit" is not a legal right concept,it cannot be directly applied in the judgment documents,nor can it be established by virtue of moral reasoning,which leads to the inconsistency of the legal basis for the judgment of such cases and the insufficient reasoning of interpretation.The lack of legal basis of the right to visit the other generation is the essence of the issue of judgment.In order to solve the above problems,the academic circles put forward the following two solutions: legislation to establish the "intergenerational visitation right" and judicial judgment to expand the interpretation of the controversy of the subject of visitation right.This set thinking fails to answer the following question: is it necessary to establish the right of intergenerational visit by legislation? In the absence of a clear legal basis,the judiciary has no right to establish new types of rights,so how to carry out judicial activities? Due to the limited number of litigation cases and the excessive academic disputes,it is difficult to reach a consensus.Therefore,the author believes that there are no conditions for the confirmation of legislative rights.Because the third draft of the civil code on marriage and family has deleted the article on the right of intergenerational visit,the scheme of legislative right confirmation is not feasible.Because the judicial judge has no right to change the literal meaning of the law,the subject of visitation right is only the parents,not including the grandparents and maternal grandparents.The decision must have the basis of law,so it is not feasible to expand the subject of visitation right through judicial decision.Therefore,this paper will explore the third feasible path,aiming at putting forward judicial opinions and constructing judicial rules,so as to realize unified trial.For every generation of visitation argues is the essence of grandparents,maternal grandparents)visit the emotional needs of the grandchildren(maternal grandchildren),consistency,and the spiritual support power has substantial and spiritual support right there is a clear legal basis,therefore,the author suggested that to replace every generation,spiritual support through judicial referee limited as the third kind of support of the spiritual support.Due to the relatively general legal provisions on spiritual support and the lack of operability,the author proposes the following Suggestions on the construction of judgment rules,which are to reclassify the cause of the case,clarify the key facts to be identified,and correctly select the legal basis.