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A Study on the Legal Protection of "Fact orphans"
Money party soldiers lawyers
Summary: June 2013 occurred in Nanjing starved girl case, led to people on the "fact orphans" this group of concern. In today's society there are a large number of "de facto orphans", also led to a series of social problems. However, due to the shortcomings of our country's law, the legitimate rights and interests of this group has not been effectively protected. This article will analyze China's current legal system in the protection of "de facto" groups on the existing problems, and make recommendations.
Keywords: fact orphans legal defects protection
First, the problem raised
The starvation girl in Nanjing in June 2013 raises the great concern of society and exposes the shortcomings of our country's laws in protecting the special group of "de facto orphans". "De facto orphans" this group already exists, and the number is very large. According to the statistics of the relevant departments, only Shantou City, there are more than 600 children did not get parents or families should have tending, care, became "the fact that no raise children." Yangcheng Evening News disclosure, the country has hundreds of thousands of "fact orphans." Their father (mother) though still, but for some reason actually no ability or no intention to raise them. Just as the starved sisters of the starved girl in Nanjing, their parents are alive, but the father is serving a crime because of the crime, the mother is not raising their own children's wishes. The tragedy eventually took place due to the lack of parental support and the absence of the relevant legal system. While we condemn irresponsible parents, we should reflect on the shortcomings of our existing laws. This paper will analyze the shortcomings of our laws in protecting "de facto orphans" and put forward their own suggestions on the legal protection of "orphans".
Second, the definition of "fact orphans"
First of all, we must make an accurate definition of "de facto orphans". The current laws of our country have not yet clearly defined the group of "orphans". But the relevant authorities have been "de facto orphans" this group gives the relevant definition. The concept of "orphan" is the earliest from the document of the Ministry of Civil Affairs, the Central Comprehensive Management Office and the Supreme People's Court in 2006 on the "Opinions on Strengthening the Work of Orphans" (Minfa  No. 52) Departmental documents), the document proposed under the new situation of our orphans protection work is the object of "loss of parents and de facto unattended minors"
And in the document will this group collectively referred to as "orphans". The Ministry of Social Welfare and Philanthropy Promotion Division of the Ministry of Civil Affairs of the People's Republic of China issued a Notice on the Statistics of Unaccompanied Child Statistics issued on 27 September 2001 that parents did not have a double death, but the family was incapable or unable to tending Of children, are "the fact that no child raising children." Fujian Provincial Civil Affairs Department in the "no living social assistance to implement the" approach to the "factual orphans" to make the definition is: because the parents were forced to detoxification, is serving a sentence, suffering from mental illness, more than two severe disability or complete loss of labor capacity , The other side of the disappearance, abandonment and other circumstances caused by the fact that no one raised children.
From the above definition, we can see that "de facto orphans" refers to those who are in fact unaccompanied children, whose parents are healthy, but have no ability or no intention to raise children.
Third, the current legal system of China's shortcomings
From the previous definition of the orphans in fact we can find that the fact that orphans include two categories, one is the parents unable to support the children. There is also a class of children who do not want to raise their parents. The former requires the involvement of the social security system, which requires the protection of the juvenile guardianship system. I will from these two aspects of the analysis of our laws in the protection of de facto orphans on the existence of defects.
(1) the defects of the existing guardianship system in China
All of our existing guardianship system can be divided into statutory guardianship and designated guardianship. Statutory guardianship refers to the custody of the law in accordance with the direct relationship between kinship. The designated guardianship is designated by the neighborhood committee of the minors' parents or the inhabitants' committee of the residence of the minor, and the villagers' committee is designated in the close relatives.
China's existing guardianship system in the "fact orphans" on the protection of certain defects, which is mainly reflected in the following aspects:
First of all, China's guardianship system is too dependent on the blood relatives of the custody. This is mainly due to China's guardianship system will be parental and guardian confused and formed China's unique "big guard" system. China's guardianship system is based on parent-based parental rights. This is in line with the needs of society at the time of the historical period, but in today's society, the frequent flow of personnel, the existence of a large number of migrant workers, their own monitoring capacity there are some limitations. It can be seen that our current blood-based guardianship system has a certain conflict in the concept of guardianship system.
Second, our guardianship system is too dependent on the role of family and society. From the "General Principles of Civil Law" Article 16 we can see that the main body of our custody system is a parent-centered relatives, the state's protection in the auxiliary position. But relying solely on the power of the family or society is not enough to protect the legitimate rights and interests of minors. Nanjing starved star girl case tragedy is to explain this point. Some scholars also pointed out: "In fact, family care alone is not enough to protect the interests of minors, in addition to family responsibilities, more need for government and social care and rescue, the need to strengthen national security and public health care. " In the absence of family and society, the state and the government should assume the responsibility to protect the legitimate rights and interests of minors.
In addition, the provisions of the duties of the relevant state organs is not clear and the lack of appropriate accountability mechanism. In general, the vast majority of parents are active and dedicated to take care of their children's healthy growth, rather than passively perform their duties. But there are a few parents did not do this kind of guardianship obligations, abuse, abandon their children and so on, so the law on the guard duties to make mandatory and guidance is not redundant. [②] Therefore, the state organs can be used as guardians. However, "Although the theory of civil law in our country long-term view that guardianship is a right, but the guardian of what specific rights law is not clearly defined." [③] in our guardianship system, minors parents, neighborhood committees, The civil affairs department has a certain guardian duty in certain circumstances. But we found that neighborhood committees and village committees as a civil self-government organizations have their own monitoring capacity is limited, the funds are not well-off, and can not effectively assume the duties of guardianship. China's parents as a unit, China now has a large number of migrant workers, which is "fact orphans" group produced one of the important reasons, their work units are not fixed, frequent replacement. At that time, the provisions of the parent unit under the guardian duty is in the context of the planned economy, personnel and units have a strong dependency relationship. But under the market economy system, such people and the unit's dependency relationship is not strong, the unit replacement becomes common. It is clear that the guardian duties assumed by the parent unit are incompatible with the current situation of the present society. As for the duty of the civil affairs department, this is indeed a viable option, but our law does not provide for the civil affairs departments do not perform their duties when the accountability mechanism, which makes the provisions of the law due to lack of coercion and greatly reduced. All in all, there is a lack of maneuverability in our current laws on the provisions of the relevant auxiliary guardians.
Finally, China's custody proceedings must be designated as the premise of the relevant units. China to assume the responsibility of the designated care group, including the parents of minors and minors living in the residents of the Committee, the village committee. In the above, the author has already discussed the product of the guardian of the unit where the minors are given is a product of a certain historical period and does not meet the needs of social development. Likewise, it is not feasible to assume the duties of the designated guardianship. The village committee, the neighborhood committee belongs to the grassroots mass self-government organization, the work involves many public affairs, public utilities, to help maintain social security and many other aspects, professional is not very strong, the relevant legal professional lack of professionals. Its ability to assume responsibility for the duties of guardianship is questionable. China's current grass-roots mass self-government organizations, the prevalence of shortages of funds, lack of talent problems, and its own commitment to a lot of social responsibilities, such as the design of the custody of the designated issues, often powerless. Moreover, since the close relatives of minors have been involved in the custody of the duties of the dispute, it should be handled by the court. Will be designated as a custody of the premise of the lawsuit will make the contradiction can not be resolved, the child's custody relationship is not recognized, or even intensify social contradictions.
(2) the shortcomings of the existing adoption system in China
According to the adoption law, orphans are less than 14 years of age, the loss of parents of children, infants and young children. This makes the "fact orphans" can not be protected by the social relief system. Nanjing starved girl case belongs to the parents are still alive, the father of starved children died because of crime, can not raise their children. The child's support for all fell on the mother's body. But it is not effective to fulfill their duties of raising children, after the tragedy, the police found that it is actually in Internet cafes. In addition, the child's grandparents repeatedly raised the request to raise children, but because of their mother's rejection was rejected by the relevant authorities.
In addition, China's adoption system also exists the adoption system on the adoption of the request is too high problem. According to the "People's Republic of China Adoption Law" provides that adopters should also have the following conditions: (1) no children. The so-called "no children" means that the adopter has neither a child nor a child and a child. (2) the ability to support the adoptive person. The so-called "ability of dependent adopters" means that the adopter should have full civil capacity, have the ability to support and educate the adoptive person in terms of physical, intellectual, economic, moral and educational children, Obligations to your children. (3) not suffering from a medical disease that should not adopt a child. The so-called "not suffering from medical medicine that should not adopt the child's disease", mainly refers to mental illness and infectious diseases. (4) at least 30 years of age. The so-called "over 30 years old" is included in the 30-year-old count. Husband and wife co-adoption, you must both sides at least 30 years of age. Although the current adoption law has relaxed the conditions for adoption compared with the 1992 Adoption Act, for example, the age of adoption is reduced from 35 to 30 years of age. But the adoption of the conditions are still more stringent. Especially for children without the requirements, not only requires no children, but also requires no children and step-child. I believe that this provision is questionable. For the adoption of the requirements of the adopters should pay attention to the quality requirements of the adopters, as to whether the adoption of children without any direct request. And the adopter himself has children who can also know how to better take care of the adoptee, there is no legislator may exist the adopter itself has children can not fully fulfill the obligation to support the concerns.
China's "de facto orphans" group is very large, relying solely on the power of the government is clearly not enough to solve the problem, and I believe that "de facto orphans" was adopted by others and was sent to the orphanage is more conducive to "de facto orphans" physical and mental health. Let "de facto orphans" grow in the family, so that "de facto orphans" feel the warmth of home, is clearly the community want to see the results. Psychologically "de facto orphans" is a kind of home warmth, so that social enthusiasts adopt them obviously more able to meet their needs. Therefore, China's adoption system on the adoption of the request is too high is not conducive to "fact orphans" by social enthusiasts adoption.
Fourth, my related suggestions
(A) to improve the monitoring system of our country related recommendations
First of all, improve China's statutory custody and designated guardianship system. Change the previous "big guard" system, distinguish between parental and custody. It is undeniable that the priority of parental rights, but "when the minors lose their parental protection, such as parents died, parents give up or transfer parental rights, parents lose parental rights, minors legal care can only pass Guardianship of the guardianship of the "[④] should be emphasized in the parents do not have the ability, especially when there is no intention to raise children, the timely change of child custody. Establish a smooth guardian change mechanism. Article 12 of the Law on the Protection of Minors stipulates that "a parent or other guardian shall be liable in accordance with the law if the parent or other guardian fails to perform his duties of guardianship or infringes upon the lawful rights and interests of the minors who are guarded, and the parents or other guardians have the acts listed in the preceding paragraph, If the education is not changed, the people's court may revoke the qualifications of the guardian according to the application of the relevant person or the relevant unit; "Article 16 of the General Principles of Civil Law also stipulates that the guardian may be established separately for the minor. However, there is often a blank of guardianship after the parental custody has been revoked. So I think the civil affairs department should be the ultimate responsibility for the guardianship of the responsibility.
Second, cancel the custody proceedings of the pre-procedure: designated guardianship. Granting other guardians of the legal guard to bring litigation directly to change the right to monitor the relationship. Establish a smooth guardian litigation mechanism in order to timely and effective "de facto orphans" relief. Rather than wasting time in a program that specifies guardianship.
Finally, under the civil affairs department set up a special guardianship agencies. Although the provisions of the parents now units, civil affairs departments, minors living in the village committees, neighborhood committees as a guardian. But the author before the analysis, by the parents of the unit as a guardian of the existence of a great limitation. The village committee, the neighborhood itself has many duties, subject to the personnel and funds in the performance of the duties of guardianship often weak. "Guardianship of fact orphans" has become a social problem. Therefore, it is imminent to set up a special guardian. Through specialized institutions can focus on a variety of social forces more effective protection of "de facto orphans" legitimate rights and interests.
(2) Suggestions on improving the adoption system of our country
First, reduce the eligibility requirements for the adopters, relax the conditions for adoption, and whether the adopters have a substantive review of the adoption conditions. I have discussed in the previous article China's current adoption system is too strict. This brings great difficulties to the adoption of "de facto orphans". Relax the conditions of the adopter can be more effective use of social forces to protect the "de facto orphans" legitimate rights and interests. At the same time, a thorough review of the adoptees can lead to more effective monitoring of adoption.
In addition, the expansion of the definition of orphans in our country. The "fact orphans" into the social security system. To the power of the state "de facto orphans" for direct protection. In the protection of "de facto orphans" rights and interests, the power of society alone is not natural, our government and other state organs should also take on the protection of "de facto orphans" duties. For example, the experience of the United Kingdom in this area is worth our reference, Li Xirui has pointed out: "Britain in the set trial period and give full play to the judiciary in the adoption of the role of supervision in the experience, worthy of our further study and reference." [⑤]
 See Sui Liang: "On China's minor guardianship system defects and perfect", "Jiangxi Youth Vocational College", 2009 No. 2.
 See Guo Deli: "On the Guardianship System of China's Defects and Perfection", "Journal of Foreign Economic and Trade University (Philosophy and Social Sciences Edition)", 2007 the third period
 See Luo Lihua, Lin Feng: "on
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