Study On The Protection Of Minors’ Rights And Interests In Divorce Disputes

Most divorce dispute cases will involve the protection of the rights and interests of minor children,and when there is a conflict of interest between the minor children and their parents,the minor children are in a significantly weaker position than their parents due to their immature mind and weak cognitive ability.In 1989,the Convention on the Rights of the Child stipulated the principle of the best interests of child,providing a theoretical basis for the protection of the rights and interests of minors.States parties to the Convention also adopted various measures to protect the rights and interests of minors,and implemented the principle of the best interests of minors into the provisions of minors’ right of expression,right of visit,and maintenance.Ensure that minors receive good spiritual and material security.In order to reduce the impact of divorce on minors,the academic circle in our country has carried out a great deal of research on the protection of minors’ rights and interests,and made a thorough discussion on the foreign system of protecting minors’ rights and interests.Moreover,laws and regulations such as "the Civil Code","the Protection of Minors" and a series of judicial interpretations have also been enacted in our legislation to meet the needs of judicial practice.To provide legal basis for protecting the rights and interests of minors.In judicial practice,local courts have also explored the system of family investigators,minors’ interests protectors and intergenerational visitation rights,strengthened the procedural protection for minors in their parents’ divorce,and broadened the channels for minors to express their opinions.By combing our laws and regulations and cases involving the protection of the rights and interests of minors in the past five years,this paper summarizes the problems that need to be improved in the protection of the rights and interests of minors:(1)The principle of the maximum interests of minors has not been established in the basic principle form of marriage and family compilation of the Civil Code,and the expression of the "principle of the maximum interests of minors" is different in judicial practice;(2)The protection system of minors’ interests has not been established in the form of legislation,only judicial interpretation has made provisions on the protection system of minors’ interests,and courts at all levels have carried out their own exploration of the protection system of minors’ interests in judicial practice;(3)The family investigator system has not made detailed provisions,it is difficult to ensure that the underage minors fully exercise the right to express their opinions,resulting in the "voice loss" phenomenon of minors in the divorce dispute cases;(4)The enforcement of child maintenance fees does not stipulate other enforcement measures except double payment of interest,which cannot guarantee that minors can obtain child maintenance fees in time;(5)The judgment of intergenerational visitation right is different in judicial practice,and the law has rough provisions on the way and execution process of visitation right,which is difficult to ensure the realization of the legislative purpose of visitation right.In order to make up for the lack of legislative theory and loopholes in judicial practice,this paper draws on the American,Japanese and German systems for the protection of the rights and interests of minors,and puts forward the following suggestions to improve the system:(1)the principle of the greatest interests of minors is stipulated as a basic principle in the general provisions of the Marriage and Family Section of the Civil Code,as a legal basis for dealing with cases involving minors,and at the same time,the application of this principle in judicial practice is proposed.(2)To construct the protection system of minors’ interests,including the protection system of minors’ interests and the protection system of social views,to protect the interests of minors;(3)Listen to the opinions of minors of different ages,refine the family investigator system,and guarantee the full exercise of minors’ right to express their opinions;(4)Linking the enforcement of alimony with the personal credit information system,the assumption of establishing a guarantee system for alimony is put forward to force the obligor to pay alimony;(5)Explore the applicable situations of intergeneration visitation right,the specific ways of exercising visitation right and the causes of suspension,introduce virtual visitation system and visitation supervisor system,and make up for the shortcomings of the provisions of visitation right in our country.The above system is designed to reduce the harm suffered by minors in the divorce dispute cases.