【作者】 霍光宇；

【导师】 李洪祥；

【作者基本信息】 吉林大学 ， 法律， 2010， 硕士

【摘要】 作为国际上第一部关于儿童权益保护的法律文件,1989年的《儿童权利公约》涉及了儿童的众多权利,涵盖了儿童的生命权、生存与健康权、家庭权利、社会权利、司法权利以及特殊儿童的保护等几乎所有涉及儿童人权的领域,明确将子女最佳利益原则作为关于处理儿童事务的主要原则。子女最佳利益原则现已发展成为世界许多国家处理涉及子女事务时的最高准则。目前,在我国涉及儿童事务的法律制度中,并没有确立子女最佳利益原则。笔者认为,我国不仅要确立子女最佳利益原则,而且要在涉及儿童权益的法律制度中实践这一原则所体现的保护儿童权利的精神,尤其要在关乎儿童众多权益的监护制度中,更是要以此原则为指导。因此,本文立足于我国监护制度的现实,通过比较国外监护制度中关于子女最佳利益原则的立法状况,指出我国监护制度的立法缺陷,建议我国《婚姻法》、《民法通则》等法律引入子女最佳利益原则,并且依据子女最佳利益原则提出了完善监护制度的立法建议。更多还原

【Abstract】 The principle of best interests of the child has been developed into the various countries highest criterion when processing the children business. This article base on our country’s reality, throughing compare the present situation of various country’s laws about the principle of best interests of the child, point out the legislative flaws, suggestting that national civil law and other laws introduce the principle of best interests of the child, propose that the related legal regime need to be revised and consummated. Besides the introduction and the conclusion, the main text divides into three chapters.The introduction part summarily points out the international background of the principle of best interests of the child which established in the world, and introduces the views of child in the world. Pointintg out the differences between the children first principle of our country’s guardianship institutions and the principle of best interests of the child. And introducing the present researches about the principle of best interests of the child in our country. Pointintg out the lack the principle of best interests of the child in guardianship institutions of our country and the necessity of establish the principle of best interests of the child.The first chapter firstly introduces the meaning of the principle of best interests of the child in the guardianship institutions, pointes out that the principle of best interests of the child has not the explicit definition, the concept has certain fuzziness, so the maximum benefit’s standard of the various countries in their judicial practice are not same ,but they all take the principle of best interests of the child as the core, this maximum benefit not only includes the material interest but also includes the spiritual benefit, not only need objectively consider children economy benefit, but also request considerate children spiritual benefit subjectively, thus realize the comprehensive protection of the children benefit . Secondly introduces the historical transformation of the guardianship pattern: family primarily, parents primarily, children primarily, points out in the guardianship pattern of family primarily and parents primarily can not use and suite with the principle of best interests of the child, pointe out that the principle of best interests of the child is produced in the child primarily guardianship pattern, summarize that the principle of best interests of the child established in the guardianship institutions and even in the conjugal fam ily institutions experiencing a very long time, it complies with the social civilization and the productive forces development, it is the historical necessity which the guardianship institutions introduce the principle of best interests of the child. Ultimatly analysis the values of the principle of best interests of the child in the guardianship institutions: protects the child benefit, restricts the guardian behavior, emphasis the social and national responsibility.The second chapter researche the present situation of our country’s guardianship institutions, pointe out the differences between the children first principle in our country’s guardianship institutions and the principle of best interests of the child, it is can not understand that the children first principle is the principle of best interests of the child, the children first principle and the principle of best interests of the child are in the different level of the children benefit protection principles, what the child first principle initiatives is that when the different interestes conflicting, must firstly considerates the realization of the children benefit, emphasizes the children benefit in the first status,t promotes children status from neglects community to the special community. The principle of best interests of the child, not only considerate the children benefit ,but also requests the realiztion of the children benefit maximization, it manifestes the right idea of the children in essentially. Therefore, the protection of the children right can not stopping on the children first principle, it must make great strides forward to the principle of best interests of the child. In China’s legal regimes, insist the principle of best interests of the child, regardless of from the angle of protecting the children rights or from the angle of insisting protects the children right idea in international, all have the very vital significances. Secondly, introduce guardianship institutions’s content of our country: scope of the by guardian, guardian qualifications and confirmation, guardian’s rights and duties, guardianship surveillance, the change and termination of guardianship. Point out our country guardianship institutions’s flaws which based on the principle of best interests of the child: displacement of the legislative goal, the by guardian scope is not detail, the content of the guardian qualifications and confirmation is unreasonable, the contents of the guardian’s right and the duties are not concrete, the guardianship surveillance’s content is too simple, the content of guardianship change and terminate are too general. Ultimatly analysis the reasones of our country’s guardianship institutions’s flaw, pointe out that the short of the principle of best interests of the child is the primary cause which causes the guardianship institutions’s flaw , clear that in the guardianship institutions the children first principle and the principle of best interests of the child can not be equated, and point out that the social economic evelopment level is also the reason which causes the guardianship institutions legislation flaws , it is imperative that according to the principle of best interests of the child revises guardianship institutions’s related legal rules .The third chapter firstly through the comparison method ,introduce the countries in UK-US legal system and the mainland legal system about the legislative content of the principle of best interests of the child. Through analysis the lawes which related with the principle of best interests of the child, get the corresponding enlightenmentes: the children best benefit principle is the main principle which insisted in the guardianship institutions, emphasis national and social responsibility, based on the by guardian’s different demands design suitable mechanism, set up the guardianship surveillance. Nextly point out that our country’s guardianship institutions should establish the principle of best interests of the child, promote the children legal status, emphasizes the children rights and interests’s protection, emphasizes the national and society’s responsibility, which is the value orientation in the modern society pursues in the children rights and interests protection’s domain. Our country as a one who signed“Convention on the Rights of Children”, fulfills the duties which protect children best benefit in“Convention on the Rights of Children”are necessary. Finally based on the principle of best interests of the child propose the legislative suggestiones which are suit our country guardianship institutions, suggeste that the family law and other related laws explicitly stipulate the principle of best interests of the child, revise and consummate our country’s guardianship institutions in order to conform the principle of best interests of the child, statement the concrete legislative proposals: discriminate by guardian’s different conditions set the different institutions, stipulate the guardian types reasonably, concretly guardianship’s content, set up the effective guardianship supervising mechanism, refine guardianship change and termination’s institutions.The conclusion part review and summarize to this artical. It is clear that our country’s guardianship institutions should introduce the principle of best interests of the child, and revise the related legislative revision on this principle, under the instruction of the principle of best interests of the child, perfect the guardianship institutions’s related stipulations, realize the family and the society and the country’s responsibility which related to the children rights and interests, thus realize the children max benefit.The guardianship system involve a lot of rights of children, in the guardianship system insiste the principle of best interests of the child which representes the determination of the nation and the social that protect the children rights and interests.Establishes the principle of best interests of the child, promote children legal status, emphasize the protection of the child rights and interests , prominent social and national responsibility,which is the value orientation that the modern society pursues . Since our country’s guardianship system have questiones which do not meet the social development needs, therefore it is necessery to revise the guardianship system.Take the principle of best interests of the child to the legal regime, take the idea of protect the child rights and interests to the entire society’s consciousness idea, introduce the principle of best interests of the child and put it in the practice,which is meet the idea of the children guardianship value, and also meet the social development requirement.更多还原