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  • Print publication year: 2019
  • Online publication date: November 2019

China: On Protection of the Child's Right to Care under the Minor Guardianship System in China

Summary

INTRODUCTION

In today's world, one of the tendencies in modern family law reform is ‘to respect children more and fully protect the interests of children’. In 1989, the United Nations Convention on the Rights of the Child (hereinafter referred to as the CRC) affirmed the principle of the best interests of the child, which specifies the rights of the child to subsistence, development, living with parents and expression. The Chinese Government has always attached great importance to the protection of children's rights and interests. Articles 26 to 39 in the General Rules of Civil Law (hereinafter referred to as the GRCL), which came into effect on 1 October 2017, stipulate the guardianship system in China. Except for Articles 28 and 33, which do not involve the guardianship of minors (hereinafter referred to as child or children), the other clauses contain the relevant contents of the guardianship system for children. This chapter analyses the present rules and judicial interpretations on the guardianship system for minors, especially the GRCL, under the guidance of the CRC. The successes and shortcomings in the present laws and rules are explored. To conclude, based on the reality in China, the authors put forward suggestions for improving the present children's guardianship with a view to better child protection and child-friendly living environments.

THE PROVISIONS AND SIGNIFICANCE OF THE CRC ON CHILD GUARDIANSHIP

The 44th UN General Assembly adopted the Convention and opened it for signature on 20 November 1989 in its resolution 25. The Chinese Government had actively participated in the drafting of the Convention and signed it on 29 August 1990. It ratified the Convention on 29 December 1991 and submitted its instrument of ratification to the United Nations on 2 March 1992. For China, the Convention entered into force on 2 April 1992. The Chinese Government has always attached great importance to the legislative and judicial work for the protection of children's rights and interests. It has endeavoured to implement the relevant provisions in the CRC. China has recently formulated and improved relevant legislation concerning children's rights protection, and at the same time has worked hard to protect children's legitimate rights and interests through law, education programs and judicial trials. Due to length restrictions, it is mainly the child guardianship system that will be explored here.