论儿童最大利益原则在离婚亲子关系中的实现

发布时间：2019-05-11 00:20

【摘要】：儿童最大利益原则作为《儿童权利公约》的一个重要的纲领性原则,确立后为各国在立法中逐步实施,开启了儿童权利保护事业的全新时代。我国经历了改革开放三十多年的快速发展,婚姻法理念迅速传播,国民的婚姻观念发生了很大改变,离婚自由的理念逐渐深入人心,离婚率也在不断上升。离婚自由同结婚自由一样,是我们应该不断继承和发展的婚姻制度。但作为体现个人自由的法定权利,离婚自由权应被“正当与适当”的行使,不应侵犯到其他人的合法权益。在现代社会,特别是中国当代,离婚自由权往往被“过度”行使,并与忽视未成年子女利益相关联,引起了一些社会问题,婚姻法学界也开始了对如何在个人自由与社会正义两端实现平衡的广泛探讨。儿童是社会发展的未来与希望,其法律地位和基本权利应为法律所确认和保护。国家、社会和家庭都有义务在保护儿童权利上付出更多的努力,以实现保护弱者的正义观念。本论文研究的主要问题包括: (1)通过对儿童最大利益原则的研究,分析其内涵、确立的意义和价值,并展开以儿童最大利益原则对离婚自由予以适当限制的讨论。在离婚关系中,要坚持离婚自由;在离婚亲子关系中,则要辩证的分析离婚自由权的行使可能对实现儿童最大利益产生的影响。针对离婚自由权利被过度行使以致侵犯到儿童合法权益的情况,应以儿童最大利益原则对离婚自由予以适当的限制。 (2)从我国的《婚姻法》、《未成年人保护法》等相关法律中,总结我国在离婚亲子关系中涉及儿童利益的相关规定,分析探讨其立法理念之不足、法律规定之欠缺,以便更好的探索完善之途径。 (3)纵观德国、澳大利亚、美国、英国等国的离婚亲子关系立法均对儿童利益进行了较为完善的保护,通过研究国外法律在离婚亲子关系中涉及儿童利益的相关规定,分析其子女本位的立法理念和完善的制度性设置,寻求我国可以借鉴吸收的经验和做法。 (4)提出关于完善我国在离婚亲子关系中对儿童保护的建议。首先要从立法上对儿童的权利做出全面的确认,在实体法上保护儿童的各项权利。其次,通过司法、行政等多方面制度的完善,确保儿童权利在程序法上有所保障,使未成年子女在离婚过程中的抚养权、探望权、财产权等合法权利不受侵害。本文通过研究这些问题,深刻分析如何在离婚亲子关系中实现儿童最大利益原则。根据我国的实际情况,处理好离婚自由与儿童最大利益原则两者的关系,实现二者的平衡,针对涉及离婚条件、离婚程序、未成年子女的抚养权、探望权、财产权等法律进行修订和完善。
[Abstract]:As an important programmatic principle of the Convention on the Rights of the Child (CRC), the principle of the best interests of the child has been gradually implemented in the legislation of various countries after the establishment of the principle, which has opened a new era for the cause of the protection of children's rights. China has experienced the rapid development of reform and opening up for more than 30 years, the concept of marriage law has been spread rapidly, the concept of marriage has changed greatly, the idea of freedom of divorce has gradually been deeply rooted in the hearts of the people, and the divorce rate is also rising. Freedom of divorce, like freedom of marriage, is a marriage system that we should inherit and develop constantly. However, as the legal right to individual freedom, the right to divorce should be exercised "properly and appropriately" and should not infringe on the legitimate rights and interests of others. In modern society, especially in contemporary China, the right to divorce is often "overexercised" and associated with the neglect of the interests of underage children, resulting in some social problems. The field of marriage law has also begun to discuss how to strike a balance between individual freedom and social justice. Children are the future and hope of social development, and their legal status and fundamental rights should be recognized and protected by law. The state, society and the family have an obligation to do more to protect the rights of the child in order to achieve the concept of justice to protect the weak. The main problems of this thesis are as follows: (1) through the study of the principle of the best interests of the child, the connotation, the significance and the value of the principle of the best interests of the child are analyzed, and the freedom of divorce is properly restricted by the principle of the best interests of the child. In divorce relationship, we should insist on divorce freedom, and in divorce parent-child relationship, we should dialectically analyze the influence of the exercise of divorce freedom on the realization of children's best interests. In view of the fact that the right to divorce freedom is overexercised so as to infringe on the legitimate rights and interests of children, the freedom of divorce should be properly restricted according to the principle of the best interests of the child. (2) from the Marriage Law, the Law on Protection of minors and other relevant laws, this paper summarizes the relevant provisions concerning the interests of children in the relationship between parents and children in divorce in China, and analyzes and discusses the shortcomings of its legislative ideas and legal provisions. In order to better explore and improve the way. (3) throughout Germany, Australia, the United States, the United Kingdom and other countries divorce parent-child relationship legislation has carried out a more perfect protection of the interests of the child, through the study of foreign laws in divorce parent-child relationship involving the child's interests related provisions, This paper analyzes the legislative idea and perfect institutional setting of the children's standard, and seeks the experiences and practices that our country can draw lessons from. (4) put forward some suggestions on perfecting the protection of children in divorce parent-child relationship in our country. First of all, we should make a comprehensive confirmation of children's rights in legislation and protect children's rights in substantive law. Secondly, through the improvement of judicial, administrative and other aspects of the system, to ensure that the rights of children in the procedural law to ensure that the minor children in the divorce process custody rights, visitation rights, property rights and other legitimate rights are not infringed. Through the study of these problems, this paper deeply analyzes how to realize the principle of the best interests of the child in divorce parent-child relationship. According to the actual situation of our country, we should deal with the relationship between freedom of divorce and the principle of best interests of children, and realize the balance between the two, aiming at the conditions of divorce, divorce procedure, custody and visitation rights of minor children. Laws such as property rights are amended and improved.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.9

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