A Judicial Empirical Study on the Principle of “the Best Interests of the Child”——From the Principles of National Conventions to the Building of Adjudication Norms

【摘要】 “The best interests of the child” is an essential principle of the Convention on the Rights of the Child. Due to the abstractness and ambiguity of this principle, its application is inevitably subject to the judge’s personality. Through empirical analysis, we can find that the judicial documents invoking the principle of “the best interests of the child” by Chinese courts show a significant increase in the number of disputes, types of disputes, and pronounced regional characteristics. The application of this principle by the courts is highly consistent with the judicial interpretative documents issued by the Supreme People’s Court. The invocation of this principle plays the role of interpreting the provisions of the law, the value basis for discretion,and the value orientation for shaping new rules in adjudication. At the same time, it is plagued by a lack of guidelines for the application of principles, invocations that serve the will of judges, and imperfect thinking in weighing the various factors involved. The application of this principle should be improved by setting normative standards for the principle of “the best interests of the child”, increasing case guidance for invoking the principle, and enhancing the professionalism of judges.更多还原

【Abstract】 “The best interests of the child” is an essential principle of the Convention on the Rights of the Child. Due to the abstractness and ambiguity of this principle, its application is inevitably subject to the judge’s personality. Through empirical analysis, we can find that the judicial documents invoking the principle of “the best interests of the child” by Chinese courts show a significant increase in the number of disputes, types of disputes, and pronounced regional characteristics. The application of this principle by the courts is highly consistent with the judicial interpretative documents issued by the Supreme People’s Court. The invocation of this principle plays the role of interpreting the provisions of the law, the value basis for discretion,and the value orientation for shaping new rules in adjudication. At the same time, it is plagued by a lack of guidelines for the application of principles, invocations that serve the will of judges, and imperfect thinking in weighing the various factors involved. The application of this principle should be improved by setting normative standards for the principle of “the best interests of the child”, increasing case guidance for invoking the principle, and enhancing the professionalism of judges.更多还原