New Developments of Parentage Law in China and Its Reform Recommendations
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After the foundation of the People’s Republic of China, muchmore attention has been paid to the rights and interests ofminor children. China’s legislature revised the related legislationconstantly and more measures to protect minor children’s rightshave been taken since the enactment of the Marriage Law 1950. Great progress has been made in China’s parentage law. “Children’s Rights and Interests Precedence” Principle has gradually taken theplace of “Parental Rights-oriented” Principle and “Best Interests ofthe Child” Principle has been realized in some provisions in China’sparentage law. However, defects in parentage law of China still existin the following areas: lack of “Best Interests of the Child” Principle;terminology difference between legitimate children and illegitimatechildren; lack of systematic mechanism to supervise and safeguardchildren’s interests; lack of systemic provisions on the presumption,denial of parent-child relationship and a child claim system; lack ofsupervision mechanism on migrant parents’ custody to children; no systemic regime on the legal status of children born by ArtificialReproductive Technology; lack of enough protective measures tominor children in parentage law in divorce. It is suggested thatparents-centeredlegislative concept should be abolished completelyand “Best Interests of the Child” principle should be establisheddefinitely in the current parentage law in order to offer guidelines tothe legislation and legal application. A system on the determiningof parent-child relationship and systematic law on the legal statusof children born by Artificial Reproductive Technology should beestablished. In addition, more measures protecting the rights andinterests of children born out of marriage and stay-at-home childrenshould be supplemented, and considerable efforts to superviseand safeguard the interests of the minor children in divorce law areneeded to be generated as well.
Abstract
After the foundation of the People’s Republic of China, muchmore attention has been paid to the rights and interests ofminor children. China’s legislature revised the related legislationconstantly and more measures to protect minor children’s rightshave been taken since the enactment of the Marriage Law 1950. Great progress has been made in China’s parentage law. “Children’s Rights and Interests Precedence” Principle has gradually taken theplace of “Parental Rights-oriented” Principle and “Best Interests ofthe Child” Principle has been realized in some provisions in China’sparentage law. However, defects in parentage law of China still existin the following areas: lack of “Best Interests of the Child” Principle;terminology difference between legitimate children and illegitimatechildren; lack of systematic mechanism to supervise and safeguardchildren’s interests; lack of systemic provisions on the presumption,denial of parent-child relationship and a child claim system; lack ofsupervision mechanism on migrant parents’ custody to children; no systemic regime on the legal status of children born by ArtificialReproductive Technology; lack of enough protective measures tominor children in parentage law in divorce. It is suggested thatparents-centeredlegislative concept should be abolished completelyand “Best Interests of the Child” principle should be establisheddefinitely in the current parentage law in order to offer guidelines tothe legislation and legal application. A system on the determiningof parent-child relationship and systematic law on the legal statusof children born by Artificial Reproductive Technology should beestablished. In addition, more measures protecting the rights andinterests of children born out of marriage and stay-at-home childrenshould be supplemented, and considerable efforts to superviseand safeguard the interests of the minor children in divorce law areneeded to be generated as well.
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