離婚后子女之監(jiān)護撫養(yǎng)制度研究
發(fā)布時間：2018-11-13 15:29
【摘要】： 隨著現(xiàn)代社會經(jīng)濟的迅猛發(fā)展，離婚現(xiàn)象也日趨頻繁，如何保護離婚后未成年子女的合法權(quán)益，已成為各國法律越來越關(guān)注的問題。兒童是未來社會發(fā)展的希望，對離婚后未成年子女的監(jiān)護、撫養(yǎng)問題的正確處理也是我國當前相當重視的問題。本文從探討國內(nèi)外相關(guān)制度的演變及趨勢入手，，在對相關(guān)制度進行分析比較的基礎(chǔ)上，借鑒國外立法經(jīng)驗，結(jié)合我國現(xiàn)狀，提出民法典親屬編中關(guān)于未成年子女之監(jiān)護、撫養(yǎng)制度的立法構(gòu)想。 本文約40，000字，共分四個部分。 第一部分 離婚后子女之監(jiān)護、撫養(yǎng)制度基本理論探討。在離婚后子女之監(jiān)護、撫養(yǎng)制度溯源中，闡述了該監(jiān)護制度的四個發(fā)展階段：1．古代的子女以隨父監(jiān)護為原則。2．近代的子女以隨無過錯的父或母監(jiān)護為原則。3．幼年原則。4．子女最佳利益原則。闡述了監(jiān)護、親權(quán)、撫養(yǎng)之區(qū)別；監(jiān)護權(quán)與探視權(quán)的關(guān)系；在處理未成年子女監(jiān)護、撫養(yǎng)制度的原則中，著重闡述了體現(xiàn)子女最佳利益的監(jiān)護法律理念及子女監(jiān)護權(quán)行使原則及撫養(yǎng)原則。 第二部分 外國離婚后未成年子女監(jiān)護、撫養(yǎng)制度的立法及評析。一是介紹大陸法系及英美法系幾個主要國家及地區(qū)的監(jiān)護制度立法，包括監(jiān)護權(quán)行使原則、監(jiān)護權(quán)變更、監(jiān)護權(quán)的強制執(zhí)行、子女最佳利益應(yīng)考慮的因素、以及探視權(quán)相關(guān)問題，并對兩大法系作出比較評析，探討國外監(jiān)護制度發(fā)展趨勢。二是介紹大陸法系及英美法系幾個主要國家及地區(qū)的撫養(yǎng)制度立法，并對子女撫養(yǎng)費標準、負擔期限、給付方式、撫養(yǎng)費的變更及撫養(yǎng)費的強制執(zhí)行進行對比并作出評析，指出值得借鑒的立法經(jīng)驗。 第三部分 我國現(xiàn)行未成年人監(jiān)護、子女撫養(yǎng)制度。分別對我國未成年人監(jiān)護制度、撫養(yǎng)制度進行闡述，分析其立法之不足。我國《婚姻法》現(xiàn)有的離婚后子女之監(jiān)護、撫養(yǎng)制度不完善，最高人民法院《子女撫養(yǎng)意見》中的規(guī)定應(yīng)歸入到婚姻法中，婚姻法中監(jiān)護制度單采共同監(jiān)護與現(xiàn)狀不符，哺乳期規(guī)定不明，有關(guān)監(jiān)護權(quán)協(xié)議的認定，法院是否可依職權(quán)審查也用語不明。對于何為不利于子女身心健康的情形，并沒有給予具體規(guī)定。對有關(guān)監(jiān)護、撫養(yǎng)判決的強制措施執(zhí)行不力。 第四部分 提出完善我國未成年人監(jiān)護制度及子女撫養(yǎng)制度的立法構(gòu)想。建議以“子女最佳利益原則”為處理子女監(jiān)護、撫養(yǎng)制度的原則。在 監(jiān)護制度中兼采共同監(jiān)護與單獨監(jiān)護;規(guī)定子女最佳利益應(yīng)考慮的因素; 明確規(guī)定哺乳期為2周歲以下兒童，對監(jiān)護判決、撫養(yǎng)費判決建立有力的強 制執(zhí)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.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2003
【分類號】：D913
本文編號：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.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2003
【分類號】：D913
【引證文獻】
相關(guān)碩士學(xué)位論文 前1條
1 李彩鳳;父母離婚后的親子關(guān)系研究[D];華東政法大學(xué);2007年
本文編號：2329564
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