Judicial Observation and Realization Exploration of the Principle of"Most Favorable to Minor Children"in the Civil Code
For the first time,the Civil Code explicitly stipulates the principle of"the best interests of the minor children",which is not only a reflection of the principle of"maximizing the interests of the children"of the Convention on the Rights of the Child,but also a basic guideline for interpreting and applying the provisions on the rights and interests of children.However,in judicial practice,there are problems with the application of this principle,such as unclear application scenarios,the use of"living together for a long period of time"as a measuring factor,and an unreasonable increase in the standard of proof of"more suitable for upbringing".The reason for this is the influence of traditional judicial concepts and the lack of corresponding supporting measures.In this regard,starting from the legal status of the subject of children's autonomy,we clarify that the contemporary spirit of"most beneficial to the minors"is to respect the true expression of the child's will,and take this as the standard and purpose.It also sets out the criteria and objectives for determining the factors for measuring the best interests of the children,the circumstances in which the typological principle applies and the factors to be measured,and proposes supporting measures for realizing the principle of"best interests of the minor children",with a view to protecting the fundamental rights of the child in judicial practice and allowing the child to participate in and make decisions on matters of relevance to the children.
best interests of the minor childrenprogressive development of capacitiesArticle 1084 of the Civil Code