离婚诉讼中儿童最大利益的实现层次与规则完善

The Criterion and Improvement of Rules of the Best Interests of the Child in the Trial of Divorce Cases

儿童具有身心发育不成熟的特殊性,获得有效监护是实现其最大利益的必要前提和根本保障。父母离婚在一定程度上解构了儿童天然的家庭监护模式,对儿童利益产生深远影响。近年我国法院审理的离婚案件数量居高不下,亟需妥善解决离婚诉讼中涉直接抚养关系、抚养费及探望权等关切儿童监护的重要事项,维护儿童的最大利益。我国在立法层面确立了涉未成年人离婚案件遵循“最有利于未成年子女”的基本审判原则,但在具体规则层面仍有不足。应继续以儿童最大利益原则为基础展开动态检视,将儿童不断发展的能力纳入考虑,充分尊重儿童的真实意愿。与此同时细化完善离婚诉讼具体审判规则,在确定直接抚养关系事项中构建儿童最大利益综合评判体系,适当扩大抚养费范围并逐步提高给付标准,确立探望权兼具权利与义务的双重属性,并在此基础上厘定中止探望的具体事由与裁判依据。

Children have a special characteristic of immature physical and mental development,so the full enjoyment of the right to guardianship is a necessary prerequisite and fundamental guarantee for achieving their best interests.The divorce of parents deconstructs the natural family guardianship mode of children and has a profound impact on children’s interests.In recent years,the number of divorce cases in China has remained high,and it is urgent to explore ways to properly resolve important issues concerning children’s right to guardianship,such as direct custody,maintenance,and visitation rights,in divorce proceedings,in order to maximize the protection of children’s interests in the event of parental divorce.It must be acknowledged that China has made significant progress at the legislative level,establishing the basic trial principle of“being in the best interest of minor children”for divorce cases.However,there are some shortcomings in specific rules.The relevant judicial interpretations are still lagging behind legislation and have not fully reflected the latest legislative progress,resulting in difficulties in fully and effectively safeguarding the interests of children involved in divorce proceedings in practice.We should,based on the international standard of taking the best interests of the child as“a primary consideration”,reflect on the problems existing in China’s current judicial practice and improve the specific trial rules for child guardianship matters in divorce cases by taking the reality of China as the starting point,so as to ensure the comprehensive implementation of and consistent adherence to the principle of“being in the best interest of minor children”in the trial.On the one hand,at the level of basic principles,the principle of the best interests of the child should be emphasized as the guiding principle in divorce trials,so as to ensure that the basic trial concept of taking the interests of the child as“a primary consideration”be implemented in all stages of divorce litigation.On this basis,a dynamic review should be carried out with the principle of the best interests of the child as the core,taking into account children’s evolving abilities,and fully respecting their true wishes in all specific rules of divorce proceedings.On the other hand,it is important to continue to refine and improve specific trial rules for divorce litigation by establishing a comprehensive evaluation system for the best interests of the child in determining direct custody matters,appropriately expanding the scope of child maintenance and clarifying its payment methods,and improving the considerations for the best interests of the child when it comes to matters related to visitation rights.While acknowledging that visitation rights have dual attributes of rights and obligations,the specific reasons and judicial requirements for suspending visitation should be further refined to protect the child’s interests.