论儿童、家庭和国家之关系

On the Relationship among Children,Families and the State

儿童,首先是独立的人,是独立的权利主体,是家庭、社会中的平等成员,其次才是父母的孩子。对儿童而言,父母、家庭、国家和社会承担的最重要任务是为儿童提供能使其成长为具有自决自治能力的负责任的公民所需要的各种条件。各方主体行使权利、承担责任,应以优先保护儿童利益为原则,以儿童利益最大化为目标,以不损害儿童权益为底线。家庭,是人类迄今为止确保儿童健康成长的最普遍的成功经验。在近现代社会,父母权利的基础和依据就是他们是最适合照顾自己孩子之人;或者可以说,父母是一种"公益岗位",赋予资格就是为了抚养教育子女成年。国家立法不仅确认父母、家庭承担抚养教育儿童的责任,而且监督父母履行义务。儿童享有获得政府保护、要求政府履行义务的权利。基于父母能力的局限性和家庭功能的弱化,国家应当更积极地承担起其"家长"责任,为家庭提供必要的扶助,必要时直接替代父母承担责任,而且尽可能提高儿童福利水平。为克服我国现行法律保障儿童权益之明显不足,我国立法应当细化监护人的选任和改定,完善监护制度;增设儿童抚养费给付垫付制;尽快制定儿童福利法,使所有儿童均享有适当抚养和教育,优先照护;建立职业化的社会工作者队伍;开放保护儿童利益的公益诉讼。

A child is an independent person first and foremost. For children, the most important task that parents, families, the state and society bear is to provide a variety of safe conditions for them that allow them to grow up as responsible adult citizens with self-determination. Main parties should prioritize protecting and maximizing the interests of children without infringing on the rights of children. Family is an institution that should ensure the healthy growth of children. In modern society, parents are deemed the most suitable people to care for their children. The parents＇ role might be defined as a ＂public role＂ given they are expected to raise and educate their children until they reach adulthood. National legislation not only confirms that parents and family in general must take responsibility in raising and education children, but also that parents must be held to account in performing their duties and obligations. On the state, children have rights to obtain protection and services from the government and ask the government to fulfill its obligations in these respects. On the consideration of weakening family function, countries should be more active to assume responsibility of children＇ s welfare as best as possible. In order to ov children＇s rights, Chinese laws should address payments. Child welfare laws should be made as ＂parenting＂ by providing necessary assistance and improving ercome obvious shortcomings regarding current legal protection of guardian selection and reformulation and children＇s alimony soon as possible because all children are entitled to a proper upbringing and education. Social work as an independent occupation should be encouraged and public interest litigation should be open to protect the interests of children.