“父母责任”法律制度比较研究
发布时间：2018-07-31 06:26
【摘要】：儿童是未来,是人们对世界的期待。目前,儿童也享有权利的观点已经被世界各国所广泛认可,对儿童权利的不尊重被视为对人权的最大践踏。父母责任制度是对儿童权利保护的最核心的要素,是“儿童利益最大化”的最集中体现,因为家庭是儿童最重要的庇护所。世界上大多数国家都对亲子关系的内容作出了或多或少的规定,父母责任的跨国公约也在逐渐形成和发展,但在我国,受传统宗法礼教影响,对家庭自治采取放任态度,法律重视度不高,国家公权力介入低,尤其在生活节奏加快的当下,外来务工人员增多,工作压力巨大,离婚率增加,法律规定的不完善更导致父母双方在子女的养育过程中出现问题甚至是矛盾和分歧,因此,对父母责任制度的研究和进一步完善就显得至关重要,完整的制度规定和详尽的责任划分,有助于更好的维护子女的权益。结合世界有关国家和国际公约的规定,分析完善我国的亲子关系制度,这正是本文进行比较研究的目的和意义之所在。 父母责任制度起源于罗马法和日耳曼法,并经历了从“家族本位”到“亲本位”直至“子女本位”的发展历程,逐渐脱离了封建道德家庭伦理制度的狭隘思想,转而关注家庭中子女的需求。虽然在大陆法系和普通法系的立法体例有不同之处,但最终目的都是逐渐向父母照顾权制度转化,重视对子女的照顾和保护,加强公权力的介入,注重子女权益。 由于跨国经济文化交流日益密切,跨国婚姻和跨国收养增加,法典的趋同化要求增加,随着海牙公约被更多的国家所接受,美洲国家组织以及欧盟立法的相继生效,父母责任的统一私法规范和实体法规范将被越来越多的国家认可。本文分别从父母子女问题的国内法规定和国际法协调两个方面进行了横向的对比和纵向的研究。在国内法领域,主要从父母责任的内容,即对子女的人身方面和权利和财产方面的权利以及对父母责任的限制进行阐述。在国际法领域,主要是介绍了对全球性和区域性国际组织有关亲子关系的法律文件和法律示范法,了解最先进的父母责任制度立法主张。 最后,回归到我国,我国并没有明确的亲子关系制度规定,我国的民事法中,并没有建立独立的亲子关系法律制度,而是散见于《婚姻法》、《民法通则》和其他的相关单行法当中,缺乏体系,内容也不够完整,因而在现实生活中出现父母侵犯未成年子女权益的事件时,由于缺乏法律依据,未成年人得不到很好的保护,文章在对各国和国际组织的法律进行比较研究的同时,认识到了我国亲子关系立法现状的不足,并在文中对我国父母责任制度进行了设想和重构。
[Abstract]:Children are the future and people's expectation of the world. At present, the view that children also enjoy rights has been widely accepted by countries all over the world, and the disrespect for children's rights is regarded as the greatest violation of human rights. The system of parental responsibility is the core element of the protection of children's rights and the most concentrated embodiment of "maximization of the interests of the child", because the family is the most important shelter for children. Most countries in the world have made more or less provisions on the content of parent-child relations, and the transnational convention on parental responsibility is gradually forming and developing. But in our country, influenced by the traditional patriarchal ethics, we adopt a laissez-faire attitude towards family autonomy. The degree of legal attention is not high, the state power is low, especially at a time when the pace of life is accelerating, the number of migrant workers is increasing, the work pressure is enormous, and the divorce rate is increasing. The imperfection of the legal provisions has led to problems and even contradictions and differences between the parents in the process of raising their children. Therefore, the study and further improvement of the system of parental responsibility is of great importance. A complete system and detailed division of responsibilities will help to better protect the rights and interests of children. This paper analyzes and consummates the system of parent-child relationship in China, which is the purpose and significance of the comparative study. The system of parental responsibility originated from Roman law and Germanic law, and experienced the development process from "family standard" to "parent position" to "child standard", and gradually separated from the narrow thought of feudal moral family ethics system. Focus instead on the needs of the children in the family. Although there are differences in the legislative style between the civil law system and the common law system, the ultimate purpose is to gradually transform to the parental care right system, attach importance to the care and protection of children, strengthen the intervention of public power, and pay attention to the rights and interests of children. As a result of the increasingly close economic and cultural exchanges between countries, the increase in intercountry marriage and adoption, and the increased requirements for convergence of codes, as the Hague Convention was accepted by more countries, the Organization of American States (OAS) and the European Union (EU) legislation came into force one after another. The norms of uniform private law and substantive law of parental responsibility will be accepted by more and more countries. This paper has carried on the horizontal contrast and the longitudinal research from the domestic law stipulation and the international law coordination of the parent-child problem. In the field of domestic law, the content of parental responsibility, namely, the right to the person and property of the child and the limitation of the parental responsibility, are discussed. In the field of international law, it mainly introduces the legal documents and model laws on parent-child relations of global and regional international organizations, and understands the most advanced legislative stand of parental responsibility system. Finally, returning to our country, our country does not have a clear system of parent-child relations. In our civil law, there is no independent legal system for parent-child relations. Instead, they are scattered in the Marriage Law, the General principles of Civil Law and other related separate laws, lacking a system and incomplete content. Therefore, when there is an incident in real life in which parents violate the rights and interests of their minor children, there is a lack of legal basis. Minors can not get very good protection. While making a comparative study of the laws of various countries and international organizations, the article recognizes the deficiency of the current legislation on parent-child relations in China, and conceive and reconstruct the system of parental responsibility in our country in this paper.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.9
本文编号：2154718
[Abstract]:Children are the future and people's expectation of the world. At present, the view that children also enjoy rights has been widely accepted by countries all over the world, and the disrespect for children's rights is regarded as the greatest violation of human rights. The system of parental responsibility is the core element of the protection of children's rights and the most concentrated embodiment of "maximization of the interests of the child", because the family is the most important shelter for children. Most countries in the world have made more or less provisions on the content of parent-child relations, and the transnational convention on parental responsibility is gradually forming and developing. But in our country, influenced by the traditional patriarchal ethics, we adopt a laissez-faire attitude towards family autonomy. The degree of legal attention is not high, the state power is low, especially at a time when the pace of life is accelerating, the number of migrant workers is increasing, the work pressure is enormous, and the divorce rate is increasing. The imperfection of the legal provisions has led to problems and even contradictions and differences between the parents in the process of raising their children. Therefore, the study and further improvement of the system of parental responsibility is of great importance. A complete system and detailed division of responsibilities will help to better protect the rights and interests of children. This paper analyzes and consummates the system of parent-child relationship in China, which is the purpose and significance of the comparative study. The system of parental responsibility originated from Roman law and Germanic law, and experienced the development process from "family standard" to "parent position" to "child standard", and gradually separated from the narrow thought of feudal moral family ethics system. Focus instead on the needs of the children in the family. Although there are differences in the legislative style between the civil law system and the common law system, the ultimate purpose is to gradually transform to the parental care right system, attach importance to the care and protection of children, strengthen the intervention of public power, and pay attention to the rights and interests of children. As a result of the increasingly close economic and cultural exchanges between countries, the increase in intercountry marriage and adoption, and the increased requirements for convergence of codes, as the Hague Convention was accepted by more countries, the Organization of American States (OAS) and the European Union (EU) legislation came into force one after another. The norms of uniform private law and substantive law of parental responsibility will be accepted by more and more countries. This paper has carried on the horizontal contrast and the longitudinal research from the domestic law stipulation and the international law coordination of the parent-child problem. In the field of domestic law, the content of parental responsibility, namely, the right to the person and property of the child and the limitation of the parental responsibility, are discussed. In the field of international law, it mainly introduces the legal documents and model laws on parent-child relations of global and regional international organizations, and understands the most advanced legislative stand of parental responsibility system. Finally, returning to our country, our country does not have a clear system of parent-child relations. In our civil law, there is no independent legal system for parent-child relations. Instead, they are scattered in the Marriage Law, the General principles of Civil Law and other related separate laws, lacking a system and incomplete content. Therefore, when there is an incident in real life in which parents violate the rights and interests of their minor children, there is a lack of legal basis. Minors can not get very good protection. While making a comparative study of the laws of various countries and international organizations, the article recognizes the deficiency of the current legislation on parent-child relations in China, and conceive and reconstruct the system of parental responsibility in our country in this paper.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.9
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