28
2021-04
Abstract: Parents are the guardians of minors. Only when the parents are dead or have no guardianship ability can others act as guardians. Grandparents (maternal grandparents) do not have legal guardianship and can only exercise this supplementary guardianship if the minor parent is dead or has no guardianship capacity. Although the the People's Republic of China Civil Code does not include the visiting rights of grandparents (maternal grandparents) into the scope of legal adjustment, under certain circumstances, the breakthrough of the subject of visiting rights should be allowed. Key words: parental right guardianship visitation right 1. legal guardianship and supplementary guardianship The relationship between (I) parents and their minor children is parental authority. Parental power refers to the rights and obligations of parents to raise, educate and protect minor children in terms of personal and property. The formation of parental legal relationship between parents and minor children is a kind of identity right, which originates from the civil law system. The concept of parental authority is not explicitly defined in the Marriage and Family Section of the the People's Republic of China Civil Code. The rights and obligations of (II) parents to their minor children are legal guardianship. The first paragraph of Article 27 of the Civil Code of the the People's Republic of China Civil Code stipulates that "parents are the guardians of minor children", which is the legal guardianship relationship between parents and minor children. Although the guardian can entrust some or all of the guardianship duties to others, when the guardianship exercised on the basis of entrustment conflicts with the legal guardianship enjoyed by the parents of minor children, the law should first protect the guardianship of the parents of the minor. The parents are the guardians of the minor's children. If one of the minor's parents is unable to perform the guardianship duties due to work and other reasons, if the other parent has the guardianship ability, one parent can accept the entrustment to take care of the child, but the other parent cannot be deprived of the child. Guardianship rights. Because the guardianship of grandparents (maternal grandparents) is a supplementary guardianship, when the supplementary guardianship exercised on the basis of entrustment conflicts with the legal guardianship of the other party, the guardianship shall be protected in priority and shall be exercised by the other spouse. Of course, it is necessary to exclude the situation where both parents go out to work and jointly entrust grandparents (grandparents) to exercise guardianship. The exercise of custody of (III) grandparents (maternal grandparents) is conditional. According to the second paragraph of article 27, another person may act as guardian only if the parent is dead or has no capacity for guardianship. Therefore, the guardianship of the parents over the minor children is the first priority. Unless the parents die, have no guardianship ability or infringe upon the legal rights of the minor and the people's court cancels the guardianship, no other person has the right to restrict or deprive the parents of the minor. Guardianship. The right of visitation of 2. grandparents (maternal grandparents) may be exercised under certain conditions. The (I) Civil Code of the People's Republic of China does not provide for visitation rights of grandparents (maternal grandparents). The first paragraph of Article 1086 of the the People's Republic of China Civil Code stipulates: "After divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist." It can be seen from this that the subject of visitation rights is "the father or mother who does not directly raise the children", and the emergence of visitation rights is a prerequisite for the dissolution of the marriage relationship between the parents, and a necessary condition for not directly raising the children. The right to visit (II) grandparents (maternal grandparents) may be exercised under certain conditions. However, in real life, it is also reasonable for grandparents (maternal grandparents) to visit their grandchildren (maternal grandchildren), although the right to visit grandparents (maternal grandparents) is not the scope of legal adjustment, just as the right to cohabitation in the relationship between husband and wife is not the scope of adjustment in the Marriage and Family Section of the the People's Republic of China Civil Code. Because according to Chinese tradition, the relationship between grandparents and grandchildren is very close, guaranteeing the visitation rights of grandparents (grandparents) to visit their grandchildren (grandchildren) is conducive to the physical and mental health of minor children, and it is also in line with my country's family ethics. Therefore, grandparents (Grandparents) visit their grandchildren (grandchildren) for granted. Under certain circumstances, the right to visit grandparents (grandparents) can be allowed. (III) grandparents (maternal grandparents) visitation rights under specific conditions to exercise the practical significance. 1. The Marriage and Family Code of the the People's Republic of China Civil Code only stipulates the basic norms that people must abide by in the field of marriage and family, and many problems depend on adjustment through moral norms and customs. According to the provisions of the Marriage and Family Section of the the People's Republic of China Civil Code, the subject of visitation rights is only the father (mother) who does not directly raise the children. Even if other close relatives have the emotional need to visit minors, they generally cannot be protected by the state. The right to visit. Therefore, it is usually the case that (outside) grandparents sue to advocate visiting (outside) grandchildren is not within the scope of legal adjustment. However, in certain circumstances, it has practical significance. If the grandparents (foreign) grandparents, in accordance with the provisions of the Marriage and Family Section of the the People's Republic of China Civil Code, take the place of their dead or unable to support their children, the people's court will support their request to visit their (foreign) grandchildren in trial practice. 2. Giving visiting rights to grandparents (foreign) is conducive to making up for the lack of emotional communication among minors and maintaining the harmony and stability of kinship. Grandparents (foreign) grandparents and grandchildren (grandchildren) have natural blood ties and common emotional needs. Visits are conducive to emotional comfort and exchange between the two sides. This kind of family interaction is conducive to the mental health and physical health of minors, and is conducive to the healthy growth of minors. The author thinks that it is very necessary to give grandparents (grandparents) supplementary guardianship only when the parents are dead or have no guardianship ability, and it is very important to allow grandparents (grandparents) to exercise visitation rights under certain conditions.
2021-04-28
28
2021-03
Abstract: Government information disclosure is an important manifestation of the protection of citizens' right to know, and it is also the proper meaning of clarifying government responsibilities and building a country under the rule of law, and its implementation has the theoretical basis of citizens' right to know theory, information asymmetry theory, crisis cycle life theory and other legal basis such as the the People's Republic of China Government Information Disclosure Regulations. Government information disclosure is particularly important in public health emergencies. Under the new crown epidemic, compared with the past, the timeliness of government information disclosure has been strengthened, the early warning mechanism has played a role, and the channels of disclosure have become more diversified, but it has also exposed many problems, including inconsistent subjects, incomplete content, and imperfect supervision and accountability mechanisms. In view of the above three problems, this paper puts forward some suggestions, such as unifying the main body of government information disclosure, improving the awareness of government information disclosure and perfecting the supervision and accountability mechanism of government information disclosure, in order to further improve the level of government information disclosure in public health emergencies and fully protect citizens' right to know. Keywords: new crown epidemic; government information disclosure; publication subject; public content; supervision and accountability mechanism 1. government information disclosure (I) basis 1. Theoretical basis From the perspective of the theory of citizens' right to know, in our country, citizens' right to know broadly refers to the right of citizens, legal persons or other organizations to require obligors to disclose certain information within the scope permitted by law; in a narrow sense, it refers to citizens within the scope permitted by law. The government has the obligation to disclose information. In public crisis events represented by public health emergencies, citizens are the main bearers of danger, and their desire to know relevant information about crisis events is even stronger; and whether the government discloses information in a timely manner, as well as the quantity and quality of the information disclosed, are directly or indirectly related to the rights of citizens, and are a measure of the degree of government obligations. From the theory of information asymmetry, there is an objective inequality in information between the government and the public. The government has strong administrative power, can control and master information, and has an advantage in the quantity and quality of information; in contrast, the public who can only grasp part of the information within the scope of government information disclosure is in a weak position. In this context, if the government information disclosure is not enforced and restricted in a certain sense, when the government chooses not to disclose or selectively disclose information resources, it will be difficult for the public to obtain timely, accurate and comprehensive information, which is not conducive to The restriction of administrative rights and the long-term operation of the country and society. ② From the crisis life cycle theory, the crisis generally includes four stages: the symptom period, the attack period, the extension period and the recovery period. In the warning period, there are only signs of some crises, and the crisis has not really happened, and it is difficult to attract people's attention; in the attack period, the crisis breaks out and is difficult to control, which has a great impact on people's life and spirit, causing people's extensive attention to the crisis; in the extension period, although the crisis is basically under control, it breaks some inherent balance, the impact of many unpredictable factors still exists, and the public's attention to the crisis is still very high; finally, the recovery period, when the crisis has generally subsided, but the government's follow-up treatment and summary of the crisis is particularly important. Therefore, according to the crisis life cycle theory, the crisis presents different characteristics at different stages, and the people's demand for relevant information also changes. The government should adjust measures to the time and publish information in time, which is of great significance to overcome the crisis and meet the people's demand for information. 2. Legal basis According to the relevant provisions of the regulations on the Disclosure of Government Information in the People's Republic of China, to the extent of information disclosure, administrative organs should disclose government information in a timely and accurate manner, adhere to the principle of openness as the norm and non-disclosure as the exception, and follow the principles of fairness, fairness, legality and convenience for the people; in the management of information disclosure, administrative organs should strengthen the standardization, standardization and information management of government information resources, strengthen the construction of the Internet government information disclosure platform, promote the integration of the government information disclosure platform and the government service platform, and improve the online processing level of government information disclosure; in the scope of disclosure, except for state secrets, social security, commercial secrets, personal privacy, and administrative agencies Except for internal affairs information, other government information should be disclosed. Among them, administrative agencies should take the initiative to disclose government information that involves the adjustment of public interests, requires the public to be widely known, or requires the public to participate in decision-making; in terms of supervision and protection of information disclosure, people's governments at all levels are required to establish and improve the government information disclosure work assessment system, social evaluation system and accountability system, regularly assess and evaluate government information disclosure work, implement and protect the information disclosure system, and safeguard the public's right to know. Summary of the Necessity of Government Information Disclosure in (II) Public Health Emergencies Public health emergencies have the characteristics of suddenness, uncertainty and destructiveness. Once they break out, they will cause great damage to social public life and public safety. Public management departments represented by the government need to take measures to actively respond. Government information disclosure is an important part of responding to health emergencies: compared with the public, the government has natural advantages in the mastery and analysis of information resources, and is more likely to find signs before the advent of public health emergencies. Take effective preventive measures; at the same time, the government plays the role of an organization leader in social life. In the face of public health emergencies, it is necessary to mobilize and unite the people and find solutions as soon as possible, in this process, a very critical factor in order to get the cooperation of the public is to disclose relevant information in a timely and accurate manner, so that the public can have a comprehensive grasp of the development of the situation and government measures, so as to improve the management efficiency in health emergencies. In public health emergencies, the public's demand for information disclosure is also extremely strong. In the current self-media era, information dissemination is free, it also provides soil for the breeding of rumors. If the government can make comprehensive information disclosure as soon as possible, it will help reduce unstable factors and prevent the spread of rumors. ④ Government information disclosure under the new crown epidemic in 2.. (I) status 1. Increased timeliness of government information disclosure Information is time-sensitive, and timeliness is the key to measure the value of information itself. Information in modern society is highly developed, and the self-media era has accelerated the spread of information and contributed to the spread of rumors. If the government cannot disclose the information it has in the first time, the public will be easily misled by rumors. The consequence is not only to affect the efficiency of crisis handling, but also to bring unstable factors to the entire society. During the SARS period, due to the opaque and untimely information, rumors spread everywhere, and even caused a rush to buy Banlangen and other items in many places, which caused great panic in the society. ⑤ This new crown epidemic, draw lessons from SARS, after confirming the new crown epidemic, the epidemic data will be released as soon as possible, and after the emergency response, the epidemic data will be released daily. ⑥ According to the data analysis of Wei Na et al. (2020) and others, more than 70% of the respondents believe that the government's information release on epidemic development, epidemic management, knowledge popularization and other aspects is timely. ⑦ 2. The early warning mechanism of government information disclosure plays a role. Information early warning refers to taking necessary measures to control the outbreak of a crisis or reduce the destructiveness of a crisis before the outbreak of a public health emergency, through some known signs that may lead to the occurrence of a threat or aggravate the crisis. ⑧ In the case of public health emergencies, the information early warning mechanism needs to be led by the government, through the use of relevant resources to monitor the signs of crisis, and alert the society before the outbreak of public danger. The emergency management during the SARS epidemic was ineffective and the early warning mechanism was not used in a timely manner to prevent and respond to emergencies. After that, the emergency management mode of "one case, three systems" was put forward, that is, to formulate and revise the emergency plan, establish and improve the emergency system, mechanism and legal system. In the prevention and control of the new coronary pneumonia epidemic in 2020, a leading group for epidemic prevention and control has been set up to promote the orderly and efficient prevention and control of the epidemic; at the same time, the National Early Warning Information Release Center has set up four parts: epidemic dynamics, popular search, migration maps, and real-time broadcast to update epidemic data in real time. This is of great significance for the government and the public to take timely and effective measures to alleviate panic. 3. Diversification of channels for government information disclosure Traditional government information disclosure channels, such as newspapers, books and other channels are relatively single, and it is difficult to quickly popularize due to factors such as time, space, and economic costs. There is a certain lag, which limits the efficiency of information disclosure and the level of information resource utilization is not high. At the same time, the government is unable to provide timely feedback, it is difficult to provide information according to the needs of the public, and it is difficult to effectively protect citizens' right to know. In this new crown epidemic, the government in addition to the traditional books, radio, television and other ways to carry out the epidemic information disclosure, but also make full use of government websites and government service network and other Internet sites, as well as WeChat public number, microblogging, collection of App, application of small programs and other new media to release important information. Diversified information dissemination channels, the spread of epidemic information in a fast and convenient way, so that the breadth and depth of information dissemination can be qualitatively improved. It is worth mentioning that in this new crown epidemic, the press conference played an important role as a special way of transmitting information. For example, as of the end of July 2020, the Guangzhou municipal government has held more than 150 press conferences, with a total of 556 units participating, 30000 reports at home and abroad, and a cumulative reading of more than 6.5 billion times, greatly promoting the dissemination of information and creating a good public opinion environment for the epidemic prevention and control war. In (II) issues 1. The main body of government information disclosure is not unified. In administrative laws and regulations, there are provisions for government subjects who have the obligation to disclose information in public health emergencies, but the provisions are not unified with each other. In the Regulations on Disclosure of Government Information, it is required that government information is generally disclosed by the department that produced or originally obtained, but other regulations provide otherwise, follow its provisions; Article 10 of the Emergency Response Law stipulates that information disclosure is The subject of obligation is "relevant people's governments and their departments", and Article 43 stipulates that "people's governments at or above the county level" are the subject of obligation to issue alarms. Some general provisions of the relevant government; some specific provisions of the government level, the main provisions of different, in practice, it is easy to cause mutual prevarication or repeated release and other phenomena, is not conducive to the improvement of the efficiency of information release. For example, in this new crown epidemic, Yancheng City, Hubei Province, in the process of releasing epidemic information, encountered the problem that it is not the subject of the right to release, and finally can only be modified through the form of confirmation by the Provincial Health Commission. 2. The content of government information disclosure is not comprehensive First of all, there is a phenomenon of concealment or misrepresentation in information disclosure. In the initial stage of public health emergencies, because the accuracy of information cannot be guaranteed, in order to reduce the uncertainty in public health events, most governments will choose to block the news first, and wait for the event to become clear before making it public. In addition, the phenomenon of local utilitarianism is also serious. In order to protect their own interests, some government officials only disclose positive information, and selectively ignore or lie about negative information. On the one hand, it infringes on citizens' right to know, on the other hand, it is easy to form a Tacitus trap, which leads to a crisis of public trust in the government. In this new coronary pneumonia epidemic, the water source village of Fenglin Town, Huangshi City, Hubei Province, reported the temperature of the returning personnel in Wuhan, the deputy director of the village committee in the case of confirmed patients, the temperature information is also reported to normal, there is a phenomenon of concealment, false information. - 3. The supervision and accountability mechanism of government information disclosure is not perfect. So far, China's legal construction in the administrative supervision and accountability mechanism is relatively weak, and there is no strict supervision and accountability mechanism. First of all, the administrative accountability mechanism is not guaranteed by special laws and regulations, but is scattered in some regulations and regulations. Moreover, the regulations are mostly mere formality and have not yet formed an effective administrative accountability mechanism. It is mainly reflected in two aspects, one is that the complaints, administrative reconsideration or litigation stipulated in the regulations are after-the-fact remedies, and contribute the least to the resolution of public health events. At the same time, the untimely disclosure of the situation will have a serious adverse impact on the emergency response to the crisis, if not in advance to propose a performance appraisal mechanism to match the public responsibility will be difficult to ensure that the government responsibility. At present, the process supervision form of public health emergency information disclosure is mainly the supervision of news and public opinion. However, public opinion reviews are subjective and emotional, and are mainly post-evaluation, with a certain lag. Avery Suggestions on Government Information Disclosure under 3. Public Health Emergencies (I) the Subject of Unifying Government Information Disclosure In the information disclosure of public health emergencies, the coordination of the main body is the key. Clarifying the subject of government information disclosure is not only conducive to improving the efficiency of information disclosure, but also conducive to investigating its corresponding responsibilities in accordance with the law afterwards. Specifically, the following three points should be achieved: 1) Consistent powers and responsibilities. In order to better connect with the relevant requirements of the "Regulations on the Disclosure of Government Information" for the production and preservation of information, the subject of the disclosure obligation should be the agency that can handle on-site; 2) Do a good job of centralized management. In order to coordinate the work of information disclosure and avoid the confusion and disorder that may be caused by multi-party release of information, it is necessary to define an authoritative release subject when handling incidents. At the same time, considering that the government work departments below the county level are difficult to be comprehensive in the collection and overall grasp of information due to limited conditions, it is suggested that the scope of release should be limited to the work departments above the county level; 3) the level of information disclosure should be simplified. Because public health emergencies have the characteristics of suddenness, uncertainty and destructiveness, if time is wasted in layer reporting or prevarication, it is easy to delay the opportunity and cause irreparable serious consequences. Therefore, it is inappropriate to leapfrog the public subject of events that occur in one place. According to the geographical scope of public health emergencies, the relevant information can be limited to the national, provincial, municipal and county levels. The (II) Raise the Awareness of Government Information Disclosure At present, our society is in a stage of transformation, and there are contradictions and unstable factors in social development; at the same time, this is an era of information explosion. The popularization of the Internet and the wide application of self-media make information dissemination easier, but information management is more difficult. If the transmission of information is not timely and appropriate, there will be the risk of being misunderstood and submerged. Therefore, it is necessary for the government to keep pace with the times and improve the awareness of information disclosure. After the outbreak of public health emergencies, it should actively, timely and accurately disclose information. Specifically, the following two points should be achieved: 1) Government officials should abandon the idea of official standard and establish a people-oriented sense of achievement. The government is the authoritative information publisher stipulated by law, and government officials must fundamentally abandon the backward concept of official-based administration and put serving the people above their personal achievements; 2) the crisis handling method of concealing, falsely reporting and blocking information should be changed. The government should abandon its own bureaucracy and deal with public information under public health emergencies.
2021-03-28
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
