The principle of the best interests of the child,as a criterion for substantive review,is conceptually ambiguous and uncertain in its application.To mitigate this dilemma in the application of the principle of the bes...The principle of the best interests of the child,as a criterion for substantive review,is conceptually ambiguous and uncertain in its application.To mitigate this dilemma in the application of the principle of the best interests of the child,the European Court of Human Rights(ECHR)has made a procedural transition in the interpretation and application of this principle,shifting from conducting specific proportionality analysis or interests balancing in cases related to children to examining whether States Parties have applied the principle of the best interests of the child in their judicial procedures.Moreover,ECHR has developed three procedural review schemes:holistic reviews,key factors-based reviews and factor list-based reviews.Compared with substantive reviews,procedural reviews adhere to the ECHR doctrine of margin of appreciation,restrict the free discretion of the court,give play to the effect of procedural autonomy,and pursue the value of subjective procedural justice,which has its own unique theoretical value and practical significance,and provides a feasible reference for China to interpret and apply the principle of the best interests of the child.展开更多
“The best interests of the child”is an essential principle of the Convention on the Rights of the Child.Due to the abstractness and ambiguity of this principle,its application is inevitably subject to the judge’s p...“The best interests of the child”is an essential principle of the Convention on the Rights of the Child.Due to the abstractness and ambiguity of this principle,its application is inevitably subject to the judge’s personality.Through empirical analysis,we can find that the judicial documents invoking the principle of“the best interests of the child”by Chinese courts show a significant increase in the number of disputes,types of disputes,and pronounced regional characteristics.The application of this principle by the courts is highly consistent with the judicial interpretative documents issued by the Supreme People’s Court.The invocation of this principle plays the role of interpreting the provisions of the law,the value basis for discretion,and the value orientation for shaping new rules in adjudication.At the same time,it is plagued by a lack of guidelines for the application of principles,invocations that serve the will of judges,and imperfect thinking in weighing the various factors involved.The application of this principle should be improved by setting normative standards for the principle of“the best interests of the child”,increasing case guidance for invoking the principle,and enhancing the professionalism of judges.展开更多
The right of minors to express their opinions in family litigations refers to minors,who have a certain degree of mental capacity and assertiveness,having the right to express their opinions on the arrangements or dec...The right of minors to express their opinions in family litigations refers to minors,who have a certain degree of mental capacity and assertiveness,having the right to express their opinions on the arrangements or decisions related to themselves when the courts handle familial litigation cases involving their interests,and to request the courts hear their opinions.In essence,the right of minors to express their opinions in family litigations belongs to the basic procedural rights of minors as well as judicial beneficiary rights.As for the protection of the right of minors to express their opinions in family litigations,recognizing the status of minors as independent subjects of rights is the logical premise,the procedural guarantee for the rights of the substantive parties involved is the direct cause,and ensuring the best interests of children is the fundamental reason.In order to protect the right of minors to express their opinions in family litigations,China should standardize the mechanisms for judges to hear the opinions of minors directly,improve the mechanisms for family investigators,and establish mechanisms for representing the interests of minors.展开更多
文摘The principle of the best interests of the child,as a criterion for substantive review,is conceptually ambiguous and uncertain in its application.To mitigate this dilemma in the application of the principle of the best interests of the child,the European Court of Human Rights(ECHR)has made a procedural transition in the interpretation and application of this principle,shifting from conducting specific proportionality analysis or interests balancing in cases related to children to examining whether States Parties have applied the principle of the best interests of the child in their judicial procedures.Moreover,ECHR has developed three procedural review schemes:holistic reviews,key factors-based reviews and factor list-based reviews.Compared with substantive reviews,procedural reviews adhere to the ECHR doctrine of margin of appreciation,restrict the free discretion of the court,give play to the effect of procedural autonomy,and pursue the value of subjective procedural justice,which has its own unique theoretical value and practical significance,and provides a feasible reference for China to interpret and apply the principle of the best interests of the child.
基金a phased result of the research project“Studies on the Relationship Between the Constitution and International Law”(18BFX034)backed by the National Social Science Fund of China
文摘“The best interests of the child”is an essential principle of the Convention on the Rights of the Child.Due to the abstractness and ambiguity of this principle,its application is inevitably subject to the judge’s personality.Through empirical analysis,we can find that the judicial documents invoking the principle of“the best interests of the child”by Chinese courts show a significant increase in the number of disputes,types of disputes,and pronounced regional characteristics.The application of this principle by the courts is highly consistent with the judicial interpretative documents issued by the Supreme People’s Court.The invocation of this principle plays the role of interpreting the provisions of the law,the value basis for discretion,and the value orientation for shaping new rules in adjudication.At the same time,it is plagued by a lack of guidelines for the application of principles,invocations that serve the will of judges,and imperfect thinking in weighing the various factors involved.The application of this principle should be improved by setting normative standards for the principle of“the best interests of the child”,increasing case guidance for invoking the principle,and enhancing the professionalism of judges.
基金the National Social Science Fund’s late-stage funded project“Research on the Realization of Family Justice”(Project Approval Number 22FFXB016)directed by the author.
文摘The right of minors to express their opinions in family litigations refers to minors,who have a certain degree of mental capacity and assertiveness,having the right to express their opinions on the arrangements or decisions related to themselves when the courts handle familial litigation cases involving their interests,and to request the courts hear their opinions.In essence,the right of minors to express their opinions in family litigations belongs to the basic procedural rights of minors as well as judicial beneficiary rights.As for the protection of the right of minors to express their opinions in family litigations,recognizing the status of minors as independent subjects of rights is the logical premise,the procedural guarantee for the rights of the substantive parties involved is the direct cause,and ensuring the best interests of children is the fundamental reason.In order to protect the right of minors to express their opinions in family litigations,China should standardize the mechanisms for judges to hear the opinions of minors directly,improve the mechanisms for family investigators,and establish mechanisms for representing the interests of minors.
