论我国离婚纠纷处理中儿童最大利益原则的实现

发布时间：2018-05-08 12:41

本文选题：探望权 + 抚养权　；参考：《辽宁大学》2017年硕士论文

【摘要】：父母作为生育和抚养的角色,无疑是儿童最大利益的守护者,在未成年子女的成长过程中承担着最为重要而关键的责任。儿童最大利益原则诞生于上世纪五六十年代,经过几十年的发展和演变,其内涵和体系逐渐孕育成熟,在里程碑式的联合国《儿章权利公约》标准的指引下,世界各国亲子关系领域立法的主流已经逐渐为子女本位立法所占据,子女本位立法最重要的特点在于以父母承担义务维护子女最大利益为核心。进入20世纪以来,国际上关于儿童保护的立法呈现出前所未有的迅速发展趋势,而在我国,自1980年以来《婚姻法》中涉及亲子关系的内容从未修改,仍然残存着不少父母本位立法的痕迹。其中,有关父母对子女所享有的权利义务的规定失于简略、概括,父母抚养、教育子女的内涵、边界和法律责任不具体、不明确,而对子女权利的保护又并不完备、不周延。笔者认为,趁着此次民法典修改的春风,我国应该在婚姻家庭法中单独设立一章“亲子关系章”,须以“父母责任”作为上位法律术语,将父母在人身关系和财产关系方面对子女所享有的权利义务涵括进去,具体、系统、全面地规范父母责任,而且关于父母责任丧失、转移和恢复的条件和程序应当有明确规定,对于不履行或者不适当履行父母责任的行为,介入国家公权力,对未成年子女实行国家监护。在父母解除婚姻关系的情况下,未成年子女无疑是这场纠纷最大的受害者,夫妻双方离婚纠纷的性质是复合之诉,这也意味着离婚案件中的法律关系将会是多样化的。因此,在解除婚姻关系与保护儿童最大利益这一对矛盾中,更应该寻找解决之良方,尽可能的保障儿章的利益。然而在实际当中,由于立法上存在一些不足以及在实践中儿童最大利益原则实现的一些难度,因此儿童最大利益的保障并不能很好的实现。调查显示,大部分离婚夫妻都膝下育有尚未成年的孩子,孩子没有办法选择父母,从他们的立场来看,家庭的分崩离析直接意味着丧失了安定的生活场所,招致的影响和代价是非常巨大的。一直以来在社会观念里,我们都先验地假定父母才是孩子的最佳监护者,假定家庭才是孩子生长的最优环境,事实上家庭的确被证明是最适合儿章生长的地方。本文从立法和实践两个角度对儿童最大利益原则的实现做出分析和建议,使离婚法律关系中儿童最大利益原则的实现具有更强的操作性。
[Abstract]:As the role of bearing and raising, parents are undoubtedly the guardians of the best interests of children, and bear the most important and key responsibility in the process of the growth of minor children. The principle of the best interests of the child was born in the fifties and sixties of last century. After decades of development and evolution, its connotation and system gradually matured and matured. Under the guidance of the landmark UN Convention on the Rights of the Child, The mainstream of parent-child relationship legislation in the world has been gradually occupied by children-based legislation. The most important feature of child-oriented legislation is that parents bear the obligation to safeguard the best interests of children as the core. Since the 20th century, the international legislation on child protection has shown an unprecedented rapid development trend, but in China, since 1980, the contents of the Marriage Law concerning parent-child relations have never been amended. There are still many traces of parental legislation. Among them, the stipulation about parents' rights and obligations to their children is not simple, summary, the connotation of parents' raising and educating children, the boundary and legal responsibility are not specific and clear, and the protection of children's rights is not complete and comprehensive. In my opinion, while the Civil Code is revised in spring, China should set up a separate chapter in the Marriage and Family Law, "Parent-Child relationship Chapter", with "parental responsibility" as the upper legal term. Including the rights and obligations of parents with respect to their children in relation to their personal and property relations, specifically, systematically and comprehensively regulating parental responsibilities, and the conditions and procedures for the loss, transfer and restoration of parental responsibilities, For failure to perform or improper performance of parental responsibilities, intervention in the public power of the state, the implementation of state custody of minor children. In the case of parents' dissolution of marriage, minor children are undoubtedly the biggest victims of this dispute, and the nature of the divorce dispute between husband and wife is a compound lawsuit, which means that the legal relationship in divorce cases will be diversified. Therefore, in the contradiction between the dissolution of marriage and the protection of the best interests of children, we should find a good solution to protect the interests of children as much as possible. However, in practice, because there are some shortcomings in legislation and some difficulties in the realization of the principle of the best interests of children in practice, the protection of the best interests of children can not be realized very well. Surveys show that most divorced couples have underage children and children have no choice but to choose their parents. From their point of view, the breakdown of the family directly means the loss of a secure place to live. The implications and costs incurred are enormous. We have always assumed that parents are the best guardian of the child and the family is the best place for children to grow up. In fact, the family has proved to be the best place for children to grow. This paper analyzes and suggests the realization of the principle of the best interests of children from the angle of legislation and practice, which makes the realization of the principle of the best interests of children in the legal relationship of divorce more operable.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

【参考文献】