家事司法中未成年子女意见表达权之保障

Protection of Minor Children's Rights to Express Their Opinions in Family Litigations

家事司法中未成年子女意见表达权是指在法院处理涉及未成年子女利益的家事案件时,具有一定心智能力、有主见的未成年子女就有关其事务安排或涉及其决定有表达自己意见并要求法院适当听取其意见的权利。在性质上,家事司法中未成年子女意见表达权属于未成年子女的程序基本权,并且属于司法受益权的范畴。未成年人独立权利主体地位的确立是家事司法中未成年子女意见表达权保障的逻辑前提;实质当事人的程序保障是家事司法中未成年子女意见表达权保障的直接原因;实现未成年子女利益最大化是家事司法未成年子女意见表达权保障的根本原因。为保障家事司法中未成年子女意见表达权,我国应当规范法官直接听取未成年子女意见机制,健全家事调查员机制,建立未成年子女利益代表人机制。

The rights of minor children to express their opinions in family litigations refers to that minor children who have a certain degree of mental capacity and assertiveness have the right to express their opinions on the arrangements or decisions related to themselves when the court handles familial litigation cases involving the interests of minor children,and to request the court to properly hear their opinions.In essence,the right of minor children to express their opinions in family litigations belongs to the basic procedural rights of minor children as well as judicial beneficiary rights.As for the protection of the right of minor children to express their opinions in family litigations,recognizing the status of minors as independent subjects of rights is the logical premise,the substantive procedural guarantee for the rights of involved parties is the direct cause,and ensuring the best interests of minor children is the fundamental reason.In order to protect the right of minor children to express their opinions in family litigations,China should standardize mechanisms for judges to directly hear the opinions of minor children,im-prove mechanisms for family investigators,and establish mechanisms for representing the inter-ests of minor children.