Research On The Divorce Restriction System Under The Principle Of Children's Best Interests

According to the statistics of the civil affairs department,the divorce rate in our country has been increasing year by year in recent years.The high divorce rate not only means the wreck of the family,but also harms minor children.The degree of freedom in the exercise of divorce rights indicates the integration of the principle of divorce freedom in China's legal system,while the protection of the interests of minor children means the implementation of the principle of the best interests of children in China's legal system.In our country,the principle of freedom of divorce and the principle of the best interests of the child are generally compatible in the marriage legal system.However,under certain conditions,these two principles will conflict.Therefore,how to ensure the implementation of both the principle of freedom of divorce and the principle of the best interests of children in divorce is the problem discussed in this paper,and the author puts forward specific system design suggestions for these problems.The first chapter mainly studies the causes of the conflict between the principle of freedom of divorce and the principle of the best interests of the child,and the choice of the protection of the two principles when the conflict occurs.The author draws the conclusion that the principle of freedom of divorce should be guaranteed by studying the internal and external development of the system of freedom of divorce and its due meaning as a basic right of our country;by studying the historical evolution,value and connotation of the principle of the best interests of children,the importance of the principle is highlighted.Finally,through a comparative analysis of the compatibility and contradiction between the principle of freedom of divorce and the principle of the best interests of the child,it is concluded that the principle of freedom of divorce should give way to the principle of the best interests of the child in general.The second chapter mainly studies the rationality of restricting the freedom of divorce under the principle of the best interests of the child.In terms of theoretical basis,the author analyzes the dispute between the value of freedom and the value of justice,the dispute between the principle of freedom of divorce and the principle of establishing a good family style,the dispute between parent-based and child-based family relations,and reasonable explanations from the perspectives of sociology of law and law and economics.On the basis of reality,the author analyzes the reasons of divorce upsurge caused by the original marriage law and the lack of protection for minor children,sorts out and analyzes the crude marriage rate,crude divorce rate and the number of divorcees in China from 2010 to 2019,and makes an empirical study on the implementation of the principle of the best interests of children in divorce cases in Jing'an District People's Court of Shanghai from 2016 to 2020.The third chapter is a comparative law study of the principle of the best interests of the child and the principle of freedom of divorce.Firstly,the author studies the current legislation of the principle of the best interests of children and the freedom of divorce in China,and analyzes its advantages and disadvantages;second,conducts a comparative study on the legislation of the two principles in foreign countries and regions,and draws lessons from the legislative system suitable for China's national conditions.The fourth chapter is to put forward reasonable suggestions for improving the system of restricting the freedom of divorce under the principle of the best interests of the children in our country.In view of the situation that the current legislation of our country is not in place to protect the interests of children in the third chapter and drawing lessons from the experience of foreign legislation,the author puts forward some suggestions to improve our country's divorce cooling-off period system,establish the substantive review mechanism of divorce agreement,set up the conditions to restrict the divorce entity,and add the litigation representative system of minor children,so as to supplement and improve the current legislation of our country,Strengthen the protection of the principle of the best interests of children.The above four chapters study the protection of the best interests of children in the process of divorce,aiming to arouse family and society's attention to children's interests,hoping to strengthen the implementation of the interests of children.