| The Civil Code formally establishes the principle of most favorable to minor children as the principle of custody in China,aiming to protect the legitimate rights and interests of minor children in custody disputes,but due to the highly ambiguous and abstract nature of the principle,except for the judicial interpretation of the Judicial Interpretation of the Marriage and Family Part(I)for some custody issues,China has not issued specific standards for the application of the principle,resulting in the formal application of the principle in judicial practice.The principle is applied formally in judicial practice and relies more on the discretion of judges,which is not uniform and is not conducive to maintaining the stability of the law,and the substantive role played by the principle is doubtful.This paper examines the current situation of the application of the principle of most favorable to minor children,and examines whether the principle has improved the problem of inadequate protection of children’s rights and interests in the existing distribution of custody after its establishment,and proposes ways to improve the application of the principle.The structure of this paper is as follows:The first part is an introduction,which discusses the main issues and significance of this paper,the research methodology and the current status of domestic and foreign research.The second part is a theoretical overview,focusing on the theoretical basis of the principle of most favorable to minor children,tracing the development of the principle of custody,exploring the development of the principle of "child-based" custody,and then analyzing the development of the principle of custody in the context of China’s national conditions and history and culture.In addition,the connotation of the principle of most favorable to minor children is explained and defined to lay the theoretical foundation for its application in custody.The third part describes the current judicial application of the principle in custody disputes and outlines the specific problems.This part focuses on the problems that do not meet the criteria of the best interests of the child in the existing custody disputes,and takes the typical cases after the implementation of the Civil Code as the object of examination.It is concluded that the application of the principle has brought both opportunities and challenges to the resolution of issues related to custody.The fourth part examines the causes of the problems in the application of the principle and lays the foundation for the countermeasures in the following part.After analysis,it is found that the reasons are: firstly,there is a lack of legal framework and normative standards in the legislation,and the relevant judicial interpretation itself has contents that deviate from the spirit of the principle and cannot be used as a standard to guide the application of the principle,and there is a lack of relevant guiding cases.Secondly,due to the institutional constraints and subjective factors that judges are subject to,as well as the ethical,emotional,and interpersonal continuity characteristics of family justice cases,the handling of such disputes themselves makes it more difficult for judges to apply the principle.The fifth part of this paper proposes a solution to the inadequate application of the principle of law.Taking into account China’s national conditions and drawing on the excellent institutional experience of other countries,in terms of legislation,China needs not only to optimize the existing provisions on custody to make them conform to the spirit of the principle of most favorable to minor children and to build corresponding evaluation standards,but also to increase the guidance of guiding cases;in terms of justice,to strengthen the pluralistic participation of minor children in family trials and to enhance the professionalism of judges’ decisions in order to achieve the maximum benefit for minor children.The last part is the conclusion of this article.The last part is the concluding remarks of this paper.The final part of the paper concludes with a summary of the application of the principle of most favorable to minor children established in the Civil Code,and provides new ideas for the application of the principle in judicial practice. |
