Can't make "seeing children" a problem of "visual dilemma" in a divorce dispute in divorce disputes

Wudan/Drawing

Reporter | Pan Qiaoqiao

Responsible editor | Zhang Jingjing

There are 3310 words in the text, and it is expected to read 10 minutes

The right to visit is the right of the child to visit the child after the law guarantee the divorce. The exercise of the right needs to be directly supported and cooperated with the supporter. In reality, the exercise of the right to visit is often blocked due to the inadequate coordination of the main supporter. Even when entering the enforcement stage, the realization of the right to visual rights is in trouble because of the particularity of such cases.

In recent years, some courts have innovated the enforcement method of visiting the right to solve the problem of exploration right through the issuance of the "Detective Performance Performance" and "Family Education Order". At present, the "Civil Establishment Law (Draft) of the People's Republic of China) (hereinafter referred to as the" Draft "), which is soliciting opinions, has also made innovative regulations for solving the problem of exploration rights.

How to solve the "dilemma"? Combined with the innovation regulations of the Draft and the innovation practice of various places, the reporter interviewed relevant experts to explore the solution of "visiting difficulties".

The right to visit by "hindrance"

The right to visit is the new content when the original marriage law was amended in 2001. Article 1066 of the Civil Code also has corresponding provisions. After divorce, the father or mother of the child will not be directly raised, the right to visit the child, and the other party has the obligation of assistance.

However, in reality, due to various reasons, directly refuse to perform the obligation to fulfill assistance, and even set up heavy obstacles to prevent the other party from visiting, forcing one party to sue to the court on the grounds of visiting disputes on the grounds of visiting the right.

On the Chinese referee document network, the number of referee documents with the "visual rights dispute" as the case is nearly 30,000. In these judgments, "refusal to cooperate", "push off", "occupation", "obstruct", "avoid seeing" and "unsuccessful negotiation" are high -frequency words. The reasons for directly refusing to "assist" by the supporter are "varied", including the opponent's failure to pay for the support, the friction between the families of the two parties after the divorce, the deterioration of the relationship between the two parties, the way of visiting the child's physical and mental health, and the visual behavior affecting the child's learning.

The real issue worthy of attention is that the judgment of the dispute over the right to visit is easy to implement. Even if you win the lawsuit, it is difficult to achieve the right to visit.

Chen Aiwu, a director of the Marriage and Family Law Research Association of the Chinese Law Society and a professor at the School of Law of Nanjing Normal University, began to pay attention to the difficulty of implementing the right to visit in 2005. According to her research, the person who was executed did not cooperate, the children who were visited did not cooperate, and the obstruction of the case was the main manifestation of the difficulty of the exploration right. Executor has a deterrent effect.

"The contradictions and emotional entanglements between the minors and even the two families in the case of the detection right dispute, with irrational components, and the" weight "used by minor children to be used by one or both parties, so that the visual rights to execute the snow to worsen the snow. "Chen Aiwu said.

Wang Jianping, executive director of the Civil Law Research Association of the Chinese Law Society and a professor at the Law School of Sichuan University, said that the relationship between parents and children should not be eliminated by their parents' divorce. In the process of growing up, minor children need to be emotionally moisturized in the process of growth. Because some husbands and wives conflict during divorce, after the divorce, the minor child returned to one party to support them. , To set up heavy obstacles to prevent the other party from realizing the right to visit.

"Forcibly visiting" is not allowed

It is worth noting that, different from general execution cases. In the case of visual rights, the court can only enforce the obligations of the executed person through legal procedures, and cannot directly enforce the personal and visual behaviors of minor children.

Article 194, which announced and solicited on June 24 and solicited for opinions, stipulates that "the implementation of the basis for the implementation of the basis for the implementation of the party is raised by one party, and the other party or the others refuse to deal with it. In addition to the implementation of the method stipulated in the previous article, the people's court can also lead the child to the supporter.

Chen Aiwu explained that "receiving diplomatic relations" is not forced, but gently "leading and handover", which does not involve force on the personal life of minors. "Children at the age of eight clearly expressed their opposition and must not be received." It shows that "receiving" is limited. From the perspective of protecting the interests of minor children, even children under the age of eight years old, when they have strong resistance and clear opposition to execution, should also find out the reason, do a good job of the ideological work of the relevant personnel, or scientifically evaluate scientifically, or scientifically evaluate scientifically. Continue to execute or suspend execution on the basis.

In the case of visiting rights disputes, when the person being executed does not cooperate with the execution of the right to visit, can the court also adopt the way to visit the person who will be visited by the visiting children?

Wang Jianping believes that it is not appropriate to directly lead the child to visit the person in the visual right case. Minor children are not the subject of the obligation to be exercised by the right to visit. The parents may not be forcibly visited for minor children, and they have no right to request the court to force the cooperation of minor children.

Chen Aiwu also believes that the courts can generally not adopt the way to visit people who have been visited. The right to visit minor children involves visiting behavior. From the perspective of the principle of proportion of administrative law, there is no need to adopt a more stringent "leading" child to realize the right to visit. If the adopter refuses to accept the reconciliation and persuasion and refuses to cooperate with the viewing, it constitutes a non -good parent. When the inspector can apply to the court to change the guardian when necessary, ask the court to judge that he is the guardian. "Children are not things, nor are they the object of execution. The execution of the right to visit should pay attention to care for the child's sensitive self -esteem, and implement the visits in a gentle environment. Ideological work is still an important option. "Chen Aiwu said.

To "upgrade" compulsory measures

In accordance with the provisions of the Civil Procedure Law and related judicial interpretations, for the relevant individuals or organizations that refuse to assist the other party to exercise the right to visits, they can take compulsory measures for detention and fines. The personal fine limit is less than 100,000 yuan, and the amount of the unit's fine is more than 50,000 yuan or less. The detention period is less than fifteen days. Generally speaking, fines and detention must not be continuously applicable.

Article 183 and Article 188 of the "Draft" "upgrade" for fines and detention measures of the executors who have assisted the visits. In terms of fines, although the fines for individuals and organizations are the same as Article 118 of the Civil Procedure Law, the "Draft" has established a daily fine system, and the cumulative fine days will not exceed 180 days. In addition, the "Draft" establishes a special detention system to greatly improve the detention period. When the detention period expires, the executed person has not made specific acts, and can be detention again, but the cumulative detention period shall not exceed six months.

Chen Aiwu said that the difficulty of the execution of the right to visit is that the factors are not assisted in the low cost. Previously, due to the limited fines of fines, the deterrent effect was not available, and the detention could only be detained once. For the party's continued refusal to perform the behavior, the executives were often helpless. In addition, the previous fines and detention measures did not specify and define the enforcement of the cases involving minor children's cases involved in the case of visiting children and the delivery of children. The specific applications are often insufficient. The effect of fines for mandatory measures in the implementation of the dispute over the right of visual rights is not satisfactory.

"The" Draft "strengthened its enforcement, and the daily fine reflected the urgency of the enforcement of cases involving minors, which was enough to be shocked by the executed person. The authority of the referee to protect the legitimate rights and interests of minor children. "Chen Aiwu said.

Wang Jianping believes that the establishment of a daily fine and the establishment of a special detention system is punitive. It is a compulsory punishment for contempt of the court's effective judgment, which is conducive to the implementation of the current and accumulated cases. Although it is fined a day, the right to give the court as appropriate and the detention measures that the executed person's decision to be refused to be convinced. Let the executed person recognize the authority of the court's effective referee.

Crashing "Dilemma of visiting" still requires multiple efforts

In addition to the above -mentioned clauses that solve the difficulties of implementation, what efforts should be done to solve the problem of the execution of the right to visit in reality?

Chen Aiwu said that the implementation of the case of a dispute over the right to visit is difficult. One of the important reasons is that both the husband and wife have brought personal emotional entanglement into the support relationship of minor children, and the way to punish the other party by refusing to assist the visits. The in -depth measures to solve the difficulty of exploration rights are to strengthen the construction of family civilization and truly implement "focusing on family, family education, and family style." In addition, the publicity should be strengthened. The Supreme People's Court and the District Court can guide the whole society to seriously treat the child care and visual problems after the divorce.

The reporter noticed that when the 35th meeting of the Standing Committee of the 13th National People's Congress reviewed the "Draft", some members suggested that in accordance with the provisions of the Family Education Promotion Law, they ordered the executed person to receive family education guidance. Establish the concept of visiting and fundamentally solve the problem of difficulty in the implementation of the right to visit.

Recently, the courts of Shanghai, Suzhou, Guangzhou and other places joined the family education guidance during the implementation of the dispute in the visual rights. Taking Shanghai as an example, in February this year, the Shanghai Baoshan District People's Court issued the first "Family Education Order" in Baoshan District to the executor in the enforcement case in the enforcement case after the divorce. "Family Education Order".

Wang Jianping believes that the court should add corresponding terms and interpretations in the referee documents, inform the parties in advance to exercise the right to explore reasonably, and warn and inform the parties to violate the legal consequences of the response commitment, reduce the occurrence of disputes and enforcement in future visits.

Similar methods have been applied in some courts. Since the beginning of this year, the courts of Guangdong, Sichuan, Jiangsu and other places have issued the "Probby Performing Performance Performance Letters" to guide and restrained the issue of divorced couples on the issue of children's visual rights. Promise.

In addition, Wang Jianping suggested that the staff of the party and government agencies who did not perform the court's effective referee in the dispute over the visual rights and increased the punishment of party discipline and government.The executed person who refused to fulfill his assistance obligations into the dishonest platform, conducts corresponding credit punishment, and openly exposed to the society.In

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