离婚后子女之监护抚养制度研究
发布时间：2018-11-13 15:29
【摘要】： 随着现代社会经济的迅猛发展，离婚现象也日趋频繁，如何保护离婚后未成年子女的合法权益，已成为各国法律越来越关注的问题。儿童是未来社会发展的希望，对离婚后未成年子女的监护、抚养问题的正确处理也是我国当前相当重视的问题。本文从探讨国内外相关制度的演变及趋势入手，，在对相关制度进行分析比较的基础上，借鉴国外立法经验，结合我国现状，提出民法典亲属编中关于未成年子女之监护、抚养制度的立法构想。 本文约40，000字，共分四个部分。 第一部分 离婚后子女之监护、抚养制度基本理论探讨。在离婚后子女之监护、抚养制度溯源中，阐述了该监护制度的四个发展阶段：1．古代的子女以随父监护为原则。2．近代的子女以随无过错的父或母监护为原则。3．幼年原则。4．子女最佳利益原则。阐述了监护、亲权、抚养之区别；监护权与探视权的关系；在处理未成年子女监护、抚养制度的原则中，着重阐述了体现子女最佳利益的监护法律理念及子女监护权行使原则及抚养原则。 第二部分 外国离婚后未成年子女监护、抚养制度的立法及评析。一是介绍大陆法系及英美法系几个主要国家及地区的监护制度立法，包括监护权行使原则、监护权变更、监护权的强制执行、子女最佳利益应考虑的因素、以及探视权相关问题，并对两大法系作出比较评析，探讨国外监护制度发展趋势。二是介绍大陆法系及英美法系几个主要国家及地区的抚养制度立法，并对子女抚养费标准、负担期限、给付方式、抚养费的变更及抚养费的强制执行进行对比并作出评析，指出值得借鉴的立法经验。 第三部分 我国现行未成年人监护、子女抚养制度。分别对我国未成年人监护制度、抚养制度进行阐述，分析其立法之不足。我国《婚姻法》现有的离婚后子女之监护、抚养制度不完善，最高人民法院《子女抚养意见》中的规定应归入到婚姻法中，婚姻法中监护制度单采共同监护与现状不符，哺乳期规定不明，有关监护权协议的认定，法院是否可依职权审查也用语不明。对于何为不利于子女身心健康的情形，并没有给予具体规定。对有关监护、抚养判决的强制措施执行不力。 第四部分 提出完善我国未成年人监护制度及子女抚养制度的立法构想。建议以“子女最佳利益原则”为处理子女监护、抚养制度的原则。在 监护制度中兼采共同监护与单独监护;规定子女最佳利益应考虑的因素; 明确规定哺乳期为2周岁以下儿童，对监护判决、抚养费判决建立有力的强 制执行措施。
[Abstract]:With the rapid development of modern society and economy, the phenomenon of divorce is becoming more and more frequent. How to protect the legitimate rights and interests of minor children after divorce has become more and more concerned by the law of all countries. Children are the hope of social development in the future. Based on the analysis and comparison of the relevant systems at home and abroad, this paper, based on the experience of foreign legislation and the current situation of our country, puts forward the guardianship of minor children in the relative series of the Civil Code. The legislative conception of the maintenance system. This paper is about 40000 words, divided into four parts. The first part discusses the basic theory of custody and upbringing of children after divorce. In the system of custody and maintenance of children after divorce, The four stages of development of the guardianship system are described as follows: 1. The principle of following the father's guardianship in ancient times. 2. The principle of free parental guardianship in modern times. 3. The principle of infancy. 4. The principle of the best interests of children. The differences among guardianship, parental authority and maintenance, the relationship between guardianship and visitation rights, and the relationship between guardianship and visitation right are discussed. In dealing with the principles of custody and maintenance system of minor children, this paper focuses on the legal concept of guardianship, the principle of exercising custody of children and the principle of raising children, which embody the best interests of children. The second part is the legislation and analysis of the custody and maintenance system of minor children after divorce in foreign countries. The first is to introduce the legislation of guardianship systems in several major countries and regions in the civil law system and the common law system, including the principle of the exercise of guardianship, the change of custody, the enforcement of custody, and the factors that should be considered in the best interests of the children. And visitation rights related issues, and the two legal systems to make a comparative analysis, explore the trend of foreign guardianship system. Secondly, it introduces the legislation of maintenance system in several major countries and regions of civil law system and common law system, and compares and evaluates the standard of child support, the period of burden, the way of payment, the change of alimony and the enforcement of maintenance. The author points out the legislative experience worthy of reference. The third part is the current guardianship of minors and the system of raising children. This paper expounds the system of guardianship of minors and the system of raising minors, and analyzes the deficiency of its legislation. The existing guardianship and maintenance system of children after divorce in China's Marriage Law is not perfect. The provisions in the Supreme people's Court's opinions on Child maintenance should be included in the Marriage Law, and the sole adoption of joint guardianship in the Marriage Law is not in accordance with the present situation. Breast-feeding rules are unclear, and it is unclear whether the court can ex officio review the custody agreement. There is no specific provision as to what is detrimental to the physical and mental health of the child. The enforcement of compulsory measures concerning custody and maintenance is inadequate. The fourth part puts forward the legislative conception of perfecting the guardianship system of minors and the system of raising children. It is suggested that the principle of "best interests of children" be taken as the principle of dealing with the system of custody and maintenance of children. In the guardianship system, the joint guardianship and individual guardianship are adopted, and the factors that should be considered in the best interests of the children are stipulated. It is clearly stipulated that the lactation period is less than 2 years of age, and the enforcement measures of guardianship and alimony are established.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D913
本文编号：2329564
[Abstract]:With the rapid development of modern society and economy, the phenomenon of divorce is becoming more and more frequent. How to protect the legitimate rights and interests of minor children after divorce has become more and more concerned by the law of all countries. Children are the hope of social development in the future. Based on the analysis and comparison of the relevant systems at home and abroad, this paper, based on the experience of foreign legislation and the current situation of our country, puts forward the guardianship of minor children in the relative series of the Civil Code. The legislative conception of the maintenance system. This paper is about 40000 words, divided into four parts. The first part discusses the basic theory of custody and upbringing of children after divorce. In the system of custody and maintenance of children after divorce, The four stages of development of the guardianship system are described as follows: 1. The principle of following the father's guardianship in ancient times. 2. The principle of free parental guardianship in modern times. 3. The principle of infancy. 4. The principle of the best interests of children. The differences among guardianship, parental authority and maintenance, the relationship between guardianship and visitation rights, and the relationship between guardianship and visitation right are discussed. In dealing with the principles of custody and maintenance system of minor children, this paper focuses on the legal concept of guardianship, the principle of exercising custody of children and the principle of raising children, which embody the best interests of children. The second part is the legislation and analysis of the custody and maintenance system of minor children after divorce in foreign countries. The first is to introduce the legislation of guardianship systems in several major countries and regions in the civil law system and the common law system, including the principle of the exercise of guardianship, the change of custody, the enforcement of custody, and the factors that should be considered in the best interests of the children. And visitation rights related issues, and the two legal systems to make a comparative analysis, explore the trend of foreign guardianship system. Secondly, it introduces the legislation of maintenance system in several major countries and regions of civil law system and common law system, and compares and evaluates the standard of child support, the period of burden, the way of payment, the change of alimony and the enforcement of maintenance. The author points out the legislative experience worthy of reference. The third part is the current guardianship of minors and the system of raising children. This paper expounds the system of guardianship of minors and the system of raising minors, and analyzes the deficiency of its legislation. The existing guardianship and maintenance system of children after divorce in China's Marriage Law is not perfect. The provisions in the Supreme people's Court's opinions on Child maintenance should be included in the Marriage Law, and the sole adoption of joint guardianship in the Marriage Law is not in accordance with the present situation. Breast-feeding rules are unclear, and it is unclear whether the court can ex officio review the custody agreement. There is no specific provision as to what is detrimental to the physical and mental health of the child. The enforcement of compulsory measures concerning custody and maintenance is inadequate. The fourth part puts forward the legislative conception of perfecting the guardianship system of minors and the system of raising children. It is suggested that the principle of "best interests of children" be taken as the principle of dealing with the system of custody and maintenance of children. In the guardianship system, the joint guardianship and individual guardianship are adopted, and the factors that should be considered in the best interests of the children are stipulated. It is clearly stipulated that the lactation period is less than 2 years of age, and the enforcement measures of guardianship and alimony are established.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D913
【引证文献】
相关硕士学位论文 前1条
1 李彩凤;父母离婚后的亲子关系研究[D];华东政法大学;2007年
本文编号：2329564
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