Abstract: How to implement the principle of paying equal attention to the education, supervision and judicial protection of minors is an important topic of great concern to the legal profession. There are contradictions and conflicts between parents' custody of minors and minors' privacy right from the moment of birth. This conflict is not only historical, but also realistic. Not only at the legislative level, but also at the judicial level, so that guardians, minors and judicial assistance often show embarrassment, helplessness and confusion after conflicts.
How to effectively balance the parental custody and the privacy of minors is a profound and brand-new topic. The division of civil capacity in modern jurisprudence provides a reference for the balance between the two. Dynamic checks and balances should be implemented between parental guardianship and minors' privacy to achieve their own balance and mutual balance, so that parental guardianship and minors' privacy have their own suitable exhibition space and make them harmonious.
[Keywords:] parental custody of minors privacy conflict dynamic checks and balances
With the development of economy and social progress, the complexity of social life is gradually increasing, and there are more and more temptations. Therefore, it is more difficult for the whole society to educate, manage and protect minors. Minors' right to privacy and custody, two mutually exclusive rights, have a basis of conflict since their birth. At present, the collision between family custody of minors and their right to privacy has surfaced, and the deep-seated conflict tends to be superficial and intense. This has become an important topic in the legal, judicial and legislative circles.
First, the realistic conflict between minors' right to privacy and custody.
At present, the protection of minors has become a hot issue of concern to the whole society, and its legislative protection is gradually strengthening. 199 1 After the promulgation and implementation of the Law on the Protection of Minors in People's Republic of China (PRC), the National People's Congress Standing Committee (NPCSC) promulgated 1999 Law on the Prevention of Juvenile Delinquency in People's Republic of China (PRC) as a supplement to the former. It is reported that the National People's Congress Standing Committee (NPCSC) is planning to amend the Law on the Protection of Minors in People's Republic of China (PRC) to strengthen the operability of the law on the protection of minors. [1] The legal system for the protection of minors is essentially the guardianship law for minors by the whole society. It can be seen that strengthening the protection of minors has attracted more and more attention from the whole society. What follows is the guardianship of minors, and how to realize and exercise guardianship is also the focus.
While the legal system for protecting minors is gradually strengthened, the legislative protection of privacy is also gradually strengthened. With the intensification of social complexity, the effective protection of privacy has become an important issue related to the quality of personal life, and has been highly valued by modern countries ruled by law. In China, the legislative and theoretical research on the right to privacy is relatively weak. Only scattered in the Constitution, the Criminal Law, the Criminal Procedure Law, the General Principles of the Civil Law and the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC), etc., the protection of minors' privacy is the most clear in Article 30 of the Law of People's Republic of China (PRC) on the Protection of Minors: in recent years, human rights protection with privacy as an important content has played an increasingly important role in our social life. China's first law to protect personal privacy, Personal Information Protection Law, has completed the expert proposal draft and started the legislative process [2]. A law to protect the right to privacy will be introduced soon. In real life, the legal awareness of minors to protect their privacy is increasing. They often don't let their parents check their schoolbags, diaries, pockets and drawers, hide their social activities and go out alone on the grounds of protecting privacy. It should be said that this is an improvement. However, due to the conflict with parental custody, many negative effects are prominent. Parents can use custody to fight against the privacy of minor children, and minor children can also use privacy to fight against parental custody. Ms. Gao, who lives in Anhansenzhai, often receives "strange letters" sent to 15-year-old son, each of which reads "adult sexual health care". In order to protect her son's physical and mental health, Ms. Gao quietly opened one of the letters when her son was at school, which contained an adult sexual health magazine. The book not only introduces a lot of sex products and drugs, but also provocative language and some unsightly pictures. So he played cards with his son. When the son knew that his private letter had been opened by his mother, he kept saying that his mother had violated his privacy and threatened to sue her. [3] It can be seen that the right to know and the right to privacy, the management obligation and the obligation to inform have been severely challenged at the same time. This challenge is a reality that the legal, judicial and legislative circles have to face.
Second, the legal conflict between minors' right to privacy and custody.
Privacy and guardianship are the objects that minors need to protect, and privacy and guardianship are also the objects that parents as the main body of protection must protect. Rising to the legal level is the object of legal adjustment. In the adjustment of these two interests, especially in the legislative and judicial practice, if it is not handled well, there will be legal conflicts. This conflict has been manifested in the existing laws. Especially in the constitution, the law on the protection of minors and the law on the prevention of juvenile delinquency, it is more prominent.