隔代探望权的性质探究和规则构建

A Research on Intergenerational Visiting Rights

我国立法未明确规定隔代探望权,司法实践中也基本持肯定的观点,但法律界对其性质的理解存有偏差。隔代探望权调整的是(外)祖父母和(外)孙子女之间的身份关系,主要是基于社会伦理观念和人们普遍认同的法感情,属于亲属权。相较于作为亲权中的探望权,由于缺乏亲权基础,探望的条件应该更加严格,法律的强制性更弱。新颁布的《民法典》未对隔代探望权进行明确规定,因此建议在未来的立法修订中,将隔代探望权在民法典婚姻家庭编的家庭关系一章或是老年人权益保障法中予以规定,切实保护老年人合法权益。

Although china’s law does not clearly define the right of intergenerational visit,the judicial practice basically holds the support of the view,but the understanding of its nature is biased.The intergenerational visiting right adjusts the identity relationship between grandparents and grandchildren,mainly based on social ethics and commonly recognized legal feelings,which should be based on the right of relatives as close relatives.Compared with the right to visit as a right of relatives,the conditions for their visit should be more stringent and the legal compulsive is weaker due to the lack of a paternal-rights base.The third draft of the Civil Code removes the provisions on the right to visit from generation to generation,and in the future legislative improvement,the right to visit from generation to family can be stipulated in the chapter on family relations compiled by marriage and family or in the Law on the Protection of the Rights and Interests of the Elderly,in order to effectively protect their legitimate rights and interests.