论亲子法中的儿童最大利益原则

发布时间：2018-05-13 15:47

本文选题：儿童法律地位 + 亲子法　；参考：《西南政法大学》2009年硕士论文

【摘要】： 儿童对社会和家庭的意义不言而喻,纵然在过去漫长的历史进程中儿童所应享有的权利一度被淹没在家长权的统治之下,无独立的主体地位,但随着社会的发展,文明的进步,儿童这一特殊群体的权益愈发受到重视并以法律的形式予以确立。社会和家庭对儿童的健康成长负有不可推卸的责任,但是时至今日仍有侵害儿童权益的现象发生,尤其是在父母离婚过程中和离婚后,未成年子女由于缺乏自我维权的能力和途径,时常在父母各自主张权利的同时被漠视和侵害。为了让儿童在社会和家庭中的利益能最大程度地得到满足,儿童最大利益原则应运而生,该原则如今已经发展成为世界大多数国家在处理儿童事务尤其是在亲子关系中涉及未成年子女利益事务时的最高准则。本文立足于我国现实,比较研究了英美法系和大陆法系一些国家的亲子法中关于儿童最大利益原则的立法状况,针对我国亲子法中对儿童利益保护的不足提出应确立儿童最大利益原则,并从制度完善的层面提出对相关法律制度予以修改和完善的立法构想。全文共分为引言、正文、结论三大部分,共计三万五千字。引言部分概括指出儿童最大利益原则研究的目的和意义,对儿童最大利益原则的称谓进行了统一,同时阐述了我国学术界对该原则的研究现状,并介绍本论文的研究目的、研究方法和主要内容安排。正文共分为四个部分: 第一部分为儿童最大利益原则概述。首先简要回顾了儿童法律地位的历史变迁。其次阐述了儿童最大利益原则产生的国际社会背景。最后论述了儿童最大利益原则的内涵、价值取向及功能。儿童最大利益原则要求在处理有关儿童在家庭和社会中涉及自身权利的一切问题时,将儿童利益置于首要地位,且优先于成人社会的利益而得到满足。该原则的确立不只在实践中能真正维护儿童权益、约束成人行为、衡平各方利益,而且还推动了各国有关儿童保护的法律体系及制度的改进与完善,具有重要意义。第二部分为儿童最大利益原则在外国亲子法中的体现。主要通过比较研究的方法简单介绍了英美法系和大陆法系一些国家关于儿童最大利益原则的内涵、适用标准以及在相关法律规定中的立法内容与体现等,并对两大法系国家进行了比较与评析。第三部分为儿童最大利益原则在我国亲子法中的体现及立法之不足。主要包括两方面的内容:首先对我国亲子法中保护儿童利益的立法现状进行了系统的介绍。其次指出我国亲子法关于儿童最大利益原则的立法规定的不足之处。我国不仅没有明文规定该原则,而且调整亲子关系的法律规定也略显粗略,这反映了我国儿童权益保护立法的滞后,不能顺应国际上亲子法的发展趋势,因此亟待立法完善。第四部分为儿童最大利益原则在我国亲子法中的确立及利益衡平。首先针对第三部分所提出的问题主张在我国亲子法中应明确规定儿童最大利益原则,并就如何完善相关法律制度提出立法建议。例如,应取消非婚生子女的称谓、规定未成年子女在家庭中的权利、扩大探望权主体的范围等。其次,简要分析了我国确立儿童最大利益原则所要面临的利益衡平问题。儿童最大利益原则并不是将儿童利益置于至高无上的地位而置其他利益主体的利益于不顾,它是在实现和维护儿童权益的同时既能够保证未成年子女与父母的利益衡平,又能够衡平儿童与成人这两大群体的利益。结语部分对本文总体思路加以回顾,表达出期望立法尽快完善,以更好的维护儿童利益并构建和谐亲子关系的美好愿望。
[Abstract]:The significance of children to the society and the family is self-evident. Even in the long history of the process, the rights of children have been submerged under the rule of parents' rights and have no independent subject position. However, with the development of society and the progress of civilization, the rights and interests of this special group of children have been paid more and more attention and are given in the form of law. It is established that society and family have an unshirkable responsibility for the healthy growth of children, but there is still a phenomenon that infringes the rights and interests of children today, especially in the process of divorce and divorce, and the minor children are often ignored and infringed on their respective claims of rights because of their lack of self rights and ways of self-protection. In order to maximize the interests of children in society and family, the principle of the best interests of children came into being. The principle has now become the highest standard in most countries in the world to deal with the interests of children in children's affairs, especially in parent-child relations.
Based on the reality of our country, this paper makes a comparative study of the legislative situation on the principle of the best interests of children in the parent-child law of some countries of the Anglo American law system and the civil law system, and puts forward the principle of establishing the best interests of the children in view of the deficiency of the protection of children's interests in the parent-child law of our country, and puts forward the relevant legal systems from the level of system perfection. The whole article is divided into three parts: introduction, text and conclusion, with a total of thirty-five thousand words.
The introduction summarizes the purpose and significance of the study on the principle of the best interests of children, and unify the appellations of the principle of the best interests of the children, at the same time, the research status of this principle in the academic circles of our country, and the purpose of the study, the method and the main content of the research are introduced.
The text is divided into four parts:
The first part is an overview of the principle of the best interests of children. First, a brief review of the historical changes of children's legal status is briefly reviewed. Secondly, the international social background of the principle of the greatest interests of children is expounded. Finally, the connotation, value orientation and function of the principle of the greatest interests of children are discussed. The principle of the best interests of children is required to deal with the children in the family. It is not only in practice that it can truly safeguard the rights and interests of children, restrain adult behavior and balance the interests of the parties, but also promote the legal system and system of the protection of children in various countries. It is of great significance to improve and improve the degree.
The second part is the embodiment of the principle of the best interests of children in the law of foreign parents and children. Through a comparative study, the connotation of the principle of the best interests of the children, the standard of application and the legislative capacity and embodiment in the relevant legal provisions are briefly introduced through comparative study, and the two legal system countries are carried out. Comparison and analysis.
The third part is the embodiment of the principle of the best interests of children in China's parent-child law and the lack of legislation. It mainly includes two aspects: first, it introduces the legislative status of the protection of children's interests in China's parent-child law. Secondly, it points out the shortcomings of the legislative provisions of the parent-child law on the maximum benefit principle of children in our country. Not only does it stipulate this principle, but also the legal provisions to adjust the relationship between parents and children are slightly sketchy, which reflects the lag of the legislation of the protection of children's rights and interests in our country, and can not comply with the development trend of the parent-child law in the world, so it is urgent to improve the legislation.
The fourth part is the establishment and equity balance of the principle of children's greatest interests in China's parent-child law. First of all, according to the questions raised in the third part, the principle of the best interests of children should be clearly defined in the parent-child law in our country, and the legislative proposals on how to perfect the relevant legal system. For example, the appellation of children born out of wedlock should be cancelled, and the provisions are not stipulated. The rights of the adult children in the family expand the scope of the subject of the visitation right. Secondly, this paper briefly analyzes the balance of interests that China has to face in establishing the principle of the best interests of children. The principle of the best interests of children is not to put the interests of children in the supreme position and disregard the interests of other benefit subjects, it is in the realization and dimension. The protection of children's rights and interests can not only guarantee the interests of minor children and their parents, but also balance the interests of the two groups of children and adults.
The concluding part reviews the general idea of this article, and expresses the hope that the expected legislation will be perfected as soon as possible so as to better safeguard the interests of children and build a harmonious relationship between parents and children.

【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D923

【引证文献】