中国民法典中的亲子关系

IF 1.3 Q1 LAW Laws Pub Date : 2022-12-22 DOI:10.3390/laws12010001
Wenting You
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引用次数: 2

摘要

本文的目的是让读者熟悉于2021年初生效的《中国民法典》,并提请他们注意《婚姻家庭手册》所带来的变化,该手册现已纳入新民法典的第五卷。父权制度最能反映《中国婚姻家庭法典》的变化,尤其是第1073条。一个完整的亲子关系制度包括对亲子关系的推定、主张和否认。然而,《民法典》第1073条对亲子关系的规定是指导性的,缺乏可操作性的规则。有必要制定操作和执行的总则,增加合法子女推定、非婚生子女主张、否认合法子女等操作规则,解决亲子纠纷。《民法典》还对《婚姻家庭书》中的收养制度进行了修改,主要是进一步限制了收养人的条件,目的是保护被收养儿童的利益。中国民法典虽然保留了合法子女和非合法子女的概念,但实质上,他们的权利和法律地位没有区别,包括继承权。综上所述,亲子鉴定的立法规范完善了中国的亲子鉴定制度,但缺乏可操作性,需要通过实践积累经验,借鉴习俗和法理,制定具体的操作规则,与立法规定相辅相成。这正是本文要解决的问题,它将填补知识空白。
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Parent-Child Relationship in the Civil Code of China
The purpose of this article is to familiarize readers with the Chinese Civil Code, which entered into force in early 2021, and to draw their attention to the changes brought about by the Marriage and Family Book, which is now included in Volume V of the new code. The paternity system best reflects the changes in the Chinese Marriage and Family Book, especially Article 1073. A complete paternity system includes presumption, claim, and denial of the parent-child relationship. However, Article 1073 of the Civil Code, which regulates the parent-child relationship, is a guiding provision with a lack of operational rules. It is necessary to make general rules for operation and enforcement by adding supporting rules, including the presumption of legitimate children, the claim of children born out of wedlock, the denial of legitimate children, and other operational rules, to resolve paternity disputes. The Civil Code also makes changes to the adoption system in the Marriage and Family Book, mainly by further restricting the conditions for adopters with the aim of protecting the interests of the adoptee children. Although the Chinese Civil Code retains the concepts of legitimate and illegitimate children, in essence, there is no difference in their rights and legal status, including the right to inheritance. In conclusion, the legislative norms of paternity determination improve the Chinese paternity system, but lack operability, and it is important to accumulate experience through practice and draw on custom and jurisprudence to develop specific operational rules that complement the legislative provisions. This is exactly what this paper will address and the knowledge gap it will fill.
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来源期刊
Laws
Laws LAW-
CiteScore
2.00
自引率
16.70%
发文量
77
审稿时长
11 weeks
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