Interpretation
How to maximize the interests of minors when their families are broken up
The lagging system in the trial of marriage and family cases needs to be changed urgently
When the court hears marriage and family cases, the establishment or change of custody relationships, determination of the amount of alimony payment, how to exercise visitation rights, etc. are mostly from the perspective of adults, and the principle of what is most beneficial to minors has not been effectively implemented; handling cases involving minors The concept and system of parental divorce cases for adults are seriously lagging behind...
This is the content of the "Research on the Protection of Minors in Marriage and Family Litigation in 2020-2022" report (hereinafter referred to as the "Report") recently released by the Beijing Juvenile Legal Aid and Research Center (hereinafter referred to as the "Center").
Yu Xukun, executive director of the center, said that the center’s researchers consulted the China Judgment Documents Network and statistically analyzed final cases involving minors’ marriage and family affairs in the three years from 2020 to 2022. A total of 1,382 cases involving minors in 30 provincial-level administrative regions across the country were analyzed. The final marriage and family cases of adults were used as samples to carry out special research on the protection of minors in divorce cases.
The report shows that among the 1,382 case samples, 1,370 cases involved minor children, involving a total of 1,649 minors.
It is difficult for minor children’s true opinions to be heard in cases of establishing or changing child support.
The Civil Code stipulates three specific principles for determining custody relationships: Children under two years old shall be directly raised by the mother; for minor children over two years old, the direct custody party shall be determined based on the principle that is most beneficial to the minor child; for children over eight years old, the direct custody party shall be determined. Their true wishes must be respected.
In order to implement these principles stipulated in the Civil Code, the Supreme People's Court's "Interpretation on the Application of the Marriage and Family Section (1) of the Civil Code of the People's Republic of China", which was implemented on January 1, 2020, stipulates that the custody relationship is consistent with the provisions of the 1993 The implemented "Several Specific Opinions of the Supreme People's Court on People's Courts' Handling of Child Support Issues in Divorce Cases" are almost the same, and are mainly considered from an adult perspective, such as: whether one party has undergone sterilization or has lost fertility due to other reasons; Whether there are other children, the length of time the children have lived, etc.
In the trial of cases confirming or changing the custody relationship, soliciting the opinions of minors over the age of 8 should be a necessary step.
According to the cases reviewed by the center's researchers, only 51.9% of the cases clearly stated in the judgment documents that the opinions of minor children over the age of 8 were asked, solicited or considered.
In some cases, the parties submitted a "letter of wishes" written by the minor during the court session, and both parties conducted cross-examination. However, when the People's Court ruled, it did not mention whether the minor's opinions were adopted.
In some cases, one parent "tempts" and "forces" the minor child to agree to live with him by allowing the child to play games, not going to school, and other methods that are detrimental to the physical and mental health of the minor child.
In one case, the man produced testimonies from two minor children, intending to prove that he was very good to the two siblings.
However, after trial, the People's Court found that the testimony was written by the two siblings under the pressure of their father. One of them made it clear that he wanted to live with his mother.
Finally, the court of second instance changed the sentence on the basis of fully respecting the opinions of the minor children.
Yu Xukun reminded that in judicial practice, while fully listening to the true opinions of minors, we should also fully realize that minors are susceptible to external interference when expressing their opinions, and what some minors express may not necessarily be true. As for the wishes of the minor, the court cannot just make a simple inquiry and make a decision based on respecting the child's opinions. It should make a comprehensive consideration based on the principle that is most beneficial to the minor.
The scope of minor child support is too narrow
Child support is related to the living security of minor children after their parents divorce.
The current judicial interpretation stipulates that alimony mainly includes three specific expenses: living expenses, education expenses, and medical expenses for minor children. At the same time, "and other expenses" are used as a blanket provision. When determining the amount of alimony, three factors can be considered, namely : The actual needs of the children, the affordability of both parents and the actual local living standards.
However, after reviewing the cases, researchers from the center found that the court judged that the scope of alimony was mainly living expenses, education expenses, and medical expenses, and generally no other expenses.
Living expenses are generally the expenses of minor children in terms of food, clothing and transportation, which are daily expenses. Whether education expenses and medical expenses need to be paid separately and how much to pay are often the focus of disputes between the two parties.
In some cases, court rulings only support the payment of basic education expenses, or believe that alimony already includes education and medical expenses and does not need to be paid separately.
The report believes that in judicial practice, the determination of the amount of child support for minors only takes into account the income level of the parents.
When determining the amount of child support, some courts mainly base it on the parents' affordability, which is calculated based on 20%-30% of their income, ignoring the two factors of the children's actual needs and the actual local living standards.
The "total monthly income" of the party who does not directly support minor children as determined by some courts is often fixed monthly salary income, and less consideration is given to income from other assets such as rent, stocks, equity, demolition, etc.
When the specific income of the party who does not directly support the minor children cannot be ascertained, courts in different regions will also use different bases to calculate support due to the lack of unified standards.
Some calculate the amount of support based on the average income of the same industry; some calculate the amount of support based on the local per capita disposable income, which is divided into three situations: the per capita disposable income of all residents, urban residents and rural residents; some calculate the amount of support based on the per capita living expenses of residents. Consumption expenditures are used to calculate the amount of child support.
There is an urgent need for legal and policy regulation, the construction of juvenile trial institutions, and the establishment of social support systems to work together.
As an expert who has been engaged in theoretical and practical research on the protection of minors for many years, Tong Lihua, director of the center, believes that my country's current concept and system for handling divorce cases involving parents of minors are seriously lagging behind.
With the development of economy and society, my country's understanding of marriage and family relations, especially the protection of minors, has undergone fundamental changes. The concept that parents are the masters and minor children are subordinates in the family has been completely changed. The Civil Code and The revised Law on the Protection of Minors has established the principle of what is best for minors. In this case, the Supreme People's Court's relevant judicial interpretations on the establishment of changes in custody relationships, the exercise of visitation rights, etc. have obviously lagged behind and have not fully reflected the principle of what is best for minors. The principle of minors.
In his view, to better protect the legitimate rights and interests of minors in marriage and family cases, work can be considered in legal and policy regulations, the construction of juvenile trial institutions, and the establishment of social support systems.
He suggested that independent juvenile courts should be established as soon as possible in the Supreme People's Court and provincial (municipal) higher people's courts and intermediate people's courts, and a specialized juvenile court case handling team should be established in grassroots people's courts; the Supreme People's Court should proceed from the perspective of protecting minors , implement the latest provisions of the Civil Code, the Law on the Protection of Minors, the Law on the Promotion of Family Education and other laws, issue judicial policies and documents, and refine the standards for identifying emotional breakdown between parties in divorce cases; establish and change the basic principles of custody relationships; determine Scientific standards for child support; establishing that minor children have the right to visit and parents should fulfill visitation obligations, etc.
Tong Lihua also believes that in the process of handling marriage and family cases involving minors, many minors need psychological counseling, social worker support, and legal aid. Many cases require professional mediators. At present, people's courts, government departments, women's federation organizations, etc. , all lack such professional talents.
He suggested that a group of outstanding social organizations be selected that have a certain work foundation in the fields of minor protection and marriage and family affairs, and are willing and able to participate in social investigations, marriage and family affairs mediation, legal aid and other related work.
People's courts, government departments, women's federations and other organizations support them in developing special and professional services through government purchase of services and other methods to create a good family environment for minors to grow up healthily and happily.
China Youth Daily·China Youth Daily reporter Han Yang Source: China Youth Daily