离婚诉讼中已满8周岁未成年人意愿的性质研究
On the Nature of the Wishes of Minors over 8 Years Old in Divorce Proceedings

在《民法典》颁布施行之后，各地人民法院对于已满8周岁未成年人表达其意愿的行为性质定位不清，以致所做判决不尽相同。将未成年人表达其意愿分为直接与间接两种方式，并初步得出未成年人直接表达其意愿其本质是一种效力待定的民事法律行为，由法官决定其效力；而采间接方式表达其意愿在法庭审理中则表现为证据的结论。进而提出审理该类案件的基本审判原则，即不应“以夫妻协商不一致”为前提、依据未成年人表示意愿方式不同分别处理以及未成年人直接表达其意愿为原则。由此，拟初步尝试解决该类案件中各地人民法院审判理由不统一的问题。
After the promulgation and implementation of the Civil Code, people’s courts around the country are not clear about the nature of the behavior of minors over the age of 8 expressing their will, resulting in different judgments. It divides the expression of the will of minors into direct and indirect ways, and preliminarily concludes that the essence of the direct expression of the will of minors is a civil legal act whose validity is to be determined by the judge. And the indirect way to express their will in court is the conclusion of evidence. Furthermore, the basic trial principles for such cases are put forward, that is, it should not be based on the premise of “disagreement between husband and wife”, and should be dealt with separately according to the different ways of minors expressing their wishes and minors directly expressing their wishes. Therefore, it is intended to make a preliminary attempt to solve the problem of disunity in the trial grounds of people’s courts in different places in this kind of case.