未成年子女利益之保护:意大利法的经验与借鉴

意大利是深受罗马法家父权传统影响的国家,未成年子女一直处于弱势的法律地位。经过理论界若干年的讨论与酝酿,1975年意大利修订了民法典中关于家庭法的部分。非婚生子女与婚生子女的法律地位实现了有限平等化。承认父母子女的利益是各自独立的,而且在存在利益冲突的情况下,诸多的司法判决都认可子女的意愿优先。监护权的行使,受到公权力的监督,无论是剥夺父母的监护权,还是临时性的收养,在监护障碍消除之后,往往还是鼓励孩子回归其原来的家庭。在保护未成年子女利益上,司法积极介入家事特别是父母与子女之间的关系,这点对深受传统思想影响的中国家庭尤其具有借鉴意义。

Protection of the Minor’s Rights:Experiences and Reference from Italian Laws

Since the tradition of potesta in Roman laws has great impacts on Italian laws,the legal status of minors have always been vulnerable in Italy. By means of several years’ discussions and preparations in the-ory circle,Italy amended the family law in the Civil Code in 1975 by which illegitimate children can accom-plish limited equality with legitimate child. The Civil Code has acknowledged that minors’ rights are independ-ent from their parents and in case of conflict of interest,many judicial judgments have recognized that the minor’s will enjoys priority. Since the exercise of custody is subject to public supervision,once the obstacle of custody is eliminated,children are encouraged to return their original family no matter whether the parent’s custody was ever deprived or due to temporary adoption. With regard to protecting the minor’s legal rights,the active interference by judicial departments into family issues particularly relations between parents and children have great referential impacts on Chinese families which are deeply influenced by traditional thoughts.