The concept of visitation right, commonly known as visitation right abroad, refers to the right of parents who do not directly raise their children to visit their children directly raised by each other, or to temporarily take back the right to live with each other. [1] The visitation right system originated from the Anglo-American legal system and provided a legal basis for parents to visit their children after divorce. For a long time, article 38 of the Marriage Law of the People's Republic of China (hereinafter referred to as the Marriage Law) clearly stipulates the right to visit: "After divorce, the spouse who does not directly raise the children has the right to visit the children, and the other spouse has the obligation to help. The way and time of exercising the visiting right shall be agreed by the parties; If the agreement fails, the people's court shall make a judgment. If parents visit their children, which is not conducive to their physical and mental health, the people's court shall suspend the right to visit according to law; After the reason for suspension disappears, the right to visit should be restored. " Literally speaking, the so-called visitation right refers to the father or mother who does not directly raise their children after divorce, and has the right to visit their minor children, meet and communicate with them, and live together for a short time. [2] (2) The nature of visiting rights; Visiting right is the content, power and effect of detention. "Rights are independent behaviors recognized and supported by society or law and the ability to control others' behaviors, which means that the obligee can take actions for certain behaviors or ask others to take actions or not to take actions, with the purpose of protecting certain material or spiritual interests. "[3] The term" content of rights "is usually easy to understand, that is, it refers to some social life interests contained in rights. For example, Mr. Shi Shangkuan believes that "rights take tangible or intangible social interests as their content. "[4] Any right will have a certain effect, that is, the obligee can do or not do something and ask others to do or not do something. Theoretically, utility is called power. For example, the power of real right is the domination of specific things, which is manifested in possession, use, income and punishment. Although it is sometimes called the right of disposition, it is not an independent right, but a content of real right. For another example, the content of copyright is the personal rights and property rights of works, and the property rights of works include publishing works (works), performing works (works) and exhibition works (works), which we call publishing rights, performance rights and exhibition rights, but they are only part of copyright. For the same reason, visiting rights are also included in custody. We call the right to visit our children the right to visit, but the right to visit is essentially a kind of custody. (3) The basic principle of visitation right is 1, and the principle of children's best interests is "the principle of children's best interests", that is, the best interests of children should be given priority when dealing with the responsibilities of parents, the right of residence and communication, the choice of children's surnames, the form of education and medical consultation. [5] The original intention of visitation right is to promote communication between parents and children, effectively handle disputes between divorced couples on children, and maintain the stability and harmony of social relations from the perspective of children's interests. Judging from the relevant provisions of the current marriage law of our country on the visiting right system, although the principle of children's best interests is not clearly established, the provisions of the third paragraph of Article 38 on the visiting right of divorced parents and the application principle of the second paragraph are the same. Although the visitation right in the case of prohibition of abuse of rights in the Supreme People's Court (200 1) is a legal right enjoyed by parents who have not lived with their minor children after divorce, it is not the case. The principle of prohibiting abuse of rights is mainly embodied in the exercise of visiting rights, that is, it must not interfere with the normal life of underage children and their parents who live together, and must not harm the physical and mental health of underage children. In the practice of visiting rights, some people arbitrarily expand their rights regardless of time, place, method and content, completely ignoring the rights of minor children and other parents, which seriously affects the family life and social stability and harmony of others. If the principle of children's best interests is to protect the interests of minor children in divorced families from a positive perspective, then the principle of prohibiting abuse of rights is to protect them from a negative perspective, and the two complement each other to prevent minor children from becoming victims of parents' divorce. Second, there is no doubt about the defects of the visiting right system in China. The establishment of visitation right system is a great progress in China's marriage and family legislation. It fixes the right of visiting in the form of law, which not only helps to protect the vital interests of minor children and the legitimate rights and interests of parents who do not directly raise their children, but also avoids the intensification of contradictions between divorced parties and promotes the stability and order of social life. However, with the application in practice, some defects and deficiencies in the visiting right system are gradually exposed, which brings difficulties to the trial and execution of visiting right dispute cases and greatly restricts the proper function of the visiting right system. (1) The scope of the subject of rights and obligations of visitation right is too narrow. Since the implementation of the visitation right system, the subject of its legal relationship has been puzzling the judicial practice. Article 38 of the Marriage Law stipulates: "After divorce, the party who does not directly raise the children has the right to visit the children, and the other party has the obligation to help." According to this regulation, the subject of visiting rights must be the parent who does not directly raise the children after divorce, and the obligatory subject must be the other party who lives with the children. In the form of legislation, China has affirmed that parents who do not live with their children after divorce have the right to visit, which is a great progress in China's legal system construction. However, the setting of visitation right in China's marriage law has never surpassed parental right, and the subject of visitation right is limited by parental right, that is, only one parent who has not exercised parental right is given visitation right. However, in practice, it is obviously unreasonable to limit the subject of visiting rights to the party who does not directly raise children after divorce, and the scope of the subject is too narrow and the definition is not reasonable enough. For example, the husband and wife have been separated for a long time without divorce, and it is not uncommon for one party to take the child away for a long time and not let the other party take it away, leaving the other party and the child in the pain of missing each other. In this case, the family communication between the other party and their children cannot be realized through the existing visiting rights system. At the same time, the current visiting right system excludes grandparents, grandparents and other close relatives from the subject of visiting right. (2) The agreed content of visitation right is weak. The Marriage Law stipulates: "The way and time of exercising visiting rights shall be agreed by the parties; If the agreement fails, the people's court shall make a judgment. This shows that the new marriage law not only gives the party who has not obtained custody the right to visit, but also stipulates the content of how the two parties can agree to exercise their rights. However, the scope of visitation right is not clear and specific. Once the two sides can't reach an agreement on this, the court will have difficulties in handling it, especially in enforcement. For example, some parties who do not directly raise children ask the court not only to visit their children, but also to take them to live in their own homes, but the other party firmly disagrees, thinking that legal visits only allow children to meet their parents, not including going out for the night. This kind of dispute often makes it difficult for courts to grasp when making judgments. In some cases in real life, even if both parties reach an agreement on the time, way and place of visiting their children during the trial, because both parties have jobs, they often agree to exercise on holidays or public holidays, and the exercise is often just a formality. Many parties often complain to the court because the right to visit has not been realized as scheduled. For such cases, if the court is directly involved in supervision every time, it means that the court will accompany the judge for many years on holidays, and it will be overwhelmed to solve the execution of these cases. In fact, it is unlikely to do so. (3) The legal reasons for suspending visiting rights are too abstract. The right to visit is the legal right of the right holder, and the law should protect the right of visitors. However, the right to visit also involves the interests of caregivers and minor children, and improper exercise may damage the legitimate rights and interests of relevant people, especially children. Therefore, it is necessary to restrict it from legislation. Suspension of visitation right system is to protect the rights and interests of related parties by suspending the visitation right holder from exercising the visitation right within a certain period. But after all, the visiting right is an important personal right of the visiting right holder, and the suspension of the visiting right has a great influence not only on the visiting right holder, but also on the rights and interests of minor children. Therefore, the law should stipulate the suspension of visiting rights from the system. In this regard, China's Marriage Law stipulates that "if parents visit their children, which is not conducive to their physical and mental health, the people's court shall suspend the right to visit according to law; After the reasons for suspension disappear, the right to visit should be restored. "On the surface, this provision is to protect children's physical and mental health, which fully embodies the principle of' children's best interests', but on reflection, this may not be the case, but it may lead to the abuse of the suspension of visiting rights. Because the law does not clearly stipulate the situation that is not conducive to children's physical and mental health, it is easy to explain and abuse the suspension system of visiting rights in practice. After divorce, in order to prevent the other party from visiting their children, many couples often use the statutory "stop visiting" rule to prevent the other party from visiting their children; Other parties' understanding of the legal situation of "stopping visiting" is arbitrary. For example, some couples have fierce contradictions and hate each other during divorce, and often criticize each other's shortcomings and faults in front of their children, which makes the image of the other party decline in the eyes of children. Some people think that this is not conducive to the physical and mental health of children, and they can ask to stop visiting. This kind of identification is obviously inappropriate. Visiting right is one of the main ways for parents to keep in touch with their children, understand their growth and educate their children after divorce, and should not be restricted unless necessary. [6] The law should be based on the principle of fairness and responsibility, further refine the various legal reasons for suspending the right to visit, unify the different criteria for determining the reasons for suspension, and truly achieve the legislative purpose of protecting the interests of underage children. (4) The regulations on the execution of visitation right need to be further improved, and the effect of the execution of visitation right given by Chinese laws needs to be further improved. The execution of visiting rights cases is the legal guarantee for parents who do not live with their children to realize parental rights for their children. After divorce, if the spouse who doesn't live with his children can't visit their children regularly, then the exercise of parental rights will lose its practical significance. Therefore, the enforcement of visitation rights cases is also an important form for parents to raise and educate their children after divorce. Article 48 of China's Marriage Law clearly stipulates: "Those who refuse to execute the judgment or ruling of visiting their children shall be enforced by the people's court according to law. Relevant individuals and units shall be responsible for assisting in the implementation. " The Supreme People's Court's judicial interpretation further clarified the implementation: "The provision that the people's court should enforce the judgment and ruling of refusing to visit children according to law means that the relevant individuals and units who refuse to perform the obligation of assisting the other party to exercise the right to visit take compulsory measures such as detention and fines, and the children's personal and visiting behavior will not be implemented." It should be said that this enforcement regulation reflects China's determination to ensure the implementation of visiting rights with national coercive power. However, judging from the cases since the implementation of the new marriage law, these legal provisions are not feasible and effective in practice because of loopholes in theory, and need to be further improved. -.[2] Cao Shiquan, Meng Lingzhi and Ma Changhua: Marriage and Family Inheritance Law, Peking University Publishing House, 1 Edition, 179 Page, March 2006. [3] Zhou Yongkun: Jurisprudence, Law Press, 2nd edition, April 2004, p. 245. [4] Shi Shangkuan: General Civil Law, China University of Political Science and Law Press, p. 248. [5] Grace Wai Wong: "Research on Visiting Right and Related Issues", "Hebei Law", No.4, July 2003. [6] Ceng Jing: "Discussion on Several Issues of Visiting Right", "Journal of Chongqing Vocational and Technical College" (Comprehensive Edition), July 2003, No.3. Since the establishment of the visiting right system in China, the academic and judicial circles have set off a research upsurge of visiting right. Scholars have done a lot of discussion and research on visiting right in order to further promote the perfection of visiting right system in China. However, judging from the actual effect of the implementation of the visiting right system, it still has not reached the expected effect when legislation was made. Firstly, this paper makes a general analysis of the visiting right system, which provides a theoretical basis for the following, and then systematically analyzes the shortcomings and defects of the visiting right system in China, and at the end of the article, puts forward some perfect measures for these shortcomings and defects. Keywords: visitation right; Suspension of visiting rights; measure

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Research paper on visitation right system

Research paper on visitation right system

I. General Analysis of Visiting Right (I) Concept of Visiting Right Visiting right, commonly known as the right to visit abroad, refers to the right of a parent who does not directly raise a child to visit a child directly raised by the other party or temporarily take the child back to his side to live together. [1] The visitation right system originated from the Anglo-American legal system and provided a legal basis for parents to visit their children after divorce. For a long time, article 38 of the Marriage Law of the People's Republic of China (hereinafter referred to as the Marriage Law) clearly stipulates the right to visit: "After divorce, the spouse who does not directly raise the children has the right to visit the children, and the other spouse has the obligation to help. The way and time of exercising the visiting right shall be agreed by the parties; If the agreement fails, the people's court shall make a judgment. If parents visit their children, which is not conducive to their physical and mental health, the people's court shall suspend the right to visit according to law; After the reason for suspension disappears, the right to visit should be restored. " Literally speaking, the so-called visitation right means that the father or mother who does not directly raise their children after divorce enjoys the right to visit and contact their minor children.