The Storm of Naming "Beiyan Yunyi" - China's first administrative lawsuit on the right to name

Author: Hu Jianmiao

From: Rule of Law Cafe

In 2009, Lu Mou, a citizen of Jinan City, Shandong Province, gave his daughter a name that neither followed her father's surname nor her mother's surname - "Beiyan Yunyi". When he went to the Yanshan Police Station of the Lixia District Bureau of the Jinan Municipal Public Security Bureau to report for his household registration, the police station refused to register him on the grounds that his name "Beiyan Yunyi" did not meet the conditions for household registration. Subsequently, Lu went to the Jinan Municipal Public Security Bureau and the Lixia Branch of the Jinan Municipal Public Security Bureau and received the same reply. Lu mou believed that the specific administrative act of the Yanshan police station in refusing to register the household registration for his daughter in the name of "Beiyan Yunyi" infringed on the legitimate rights and interests of his daughter, and on December 17, 2009, he filed an administrative lawsuit with the Lixia District Court in the name of the ward "Beiyan Yunyi", requesting the court to confirm that the public security organs refused to use "Beiyan Yunyi" as the name to handle the hukou registration illegally.

After two public hearings, the court ruled on March 11, 2010, that the case involved issues of application of law and needed to be sent to the competent authority for interpretation or confirmation. After the Supreme People's Court submitted to the Standing Committee of the National People's Congress for interpretation, the Standing Committee of the National People's Congress adopted the 11th Session of the Standing Committee of the Twelfth National People's Congress on November 1, 2014 and made the "Interpretation on Article 99, Paragraph 1 of the General Principles of the Civil Law of the People's Republic of China and Article 22 of the Marriage Law of the People's Republic of China". On April 21, 2015, the Lixia District People's Court of Jinan City resumed hearing the case, and on April 24 rejected the plaintiff's "Beiyan Yunyi" request to confirm that the defendant Yanshan Police Station refused to use "Beiyan Yunyi" as the name to handle the illegality of the household registration.

In the course of the litigation, the parties argued fiercely. The public security organ replied that according to article 99, paragraph 1, of the General Principles of Civil Law (1986) and article 22 of the Marriage Law (2001), citizens must take their names with their father's surname or mother, and the current name of "Beiyan Yunyi" does not meet this requirement.

The plaintiff's reasons are: First, the name "Beiyan Yunyi" is not malicious, and it does not violate social morality, just for auspiciousness. Mr. Lü loves ancient literature, and he once explained in detail the meaning of the four characters of "Northern Yan Yunyi": Shandong belongs to the north, and in ancient times there was a poem "There are beautiful people in the north, the world is left behind and independent, one look at the city of the people, and then take care of the country"; "the goose" is the bird of the north, "ask what is the world's situation, the orthodox religion of life and death" The inspiration for the creation of this poem comes from the big goose; "cloud" is a cloud, and is frequently used in ancient poetry; "Yi" comes from the "Book of Poetry", "I used to go to the past, Yang Liu Yiyi". Secondly, article 99, paragraph 1, of the General Principles of the Civil Law and article 22 of the Marriage Law stipulate that the father's or mother's surname may be followed, and it is not prohibited to follow the third surname.

After trial, the Lixia District Court held that the parties mainly disagreed on the application of the relevant provisions of the General Principles of Civil Law and the Marriage Law. The Standing Committee of the National People's Congress now interprets Article 99, Paragraph 1, of the General Principles of the Civil Law and Article 22 of the Marriage Law. The interpretation stipulates: "Citizens enjoy the right to a name in accordance with law. Citizens exercising the right to a name shall also respect social morality and must not harm the societal public interest. In principle, citizens should take the father's or mother's surname. In any of the following circumstances, a surname may be chosen in addition to the father's and the mother's surname: (i) the surname of another blood relative of the direct elder; The surnames of ethnic minority citizens can be derived from the cultural traditions and customs of their own ethnic groups. The first paragraph of the legislative interpretation reaffirms that citizens enjoy the right to a name in accordance with the law, and at the same time points out that the exercise of the right to a name by citizens, as a civil activity, should respect social morality and must not harm the social public interest. The second paragraph, in the form of "enumeration + general clauses", provides for three situations in which a family name may be chosen in addition to the father's and the mother's surname. The third paragraph is aimed at citizens of ethnic minorities and stipulates that the traditions and customs of their own ethnic groups may be observed. The name "Beiyan Yunyi" has no "other legitimate reasons" and is contrary to "public order and good customs".

Although the dust has settled on the outcome of the lawsuit, the controversy in the academic circles is far from over.

Article 99, paragraph 1, of the General Principles of Civil Law, which is involved in this case, stipulates: "Citizens enjoy the right to a name, have the right to decide, use and change their names in accordance with regulations, and prohibit others from interfering, misappropriating or passing off." Article 22 of the Marriage Law stipulates: "Children may take the father's surname and may follow the mother's surname." ”

Basically based on the facts of the case and compared with the law, the author has the following comments and ideas:

First, the naming of citizens is a civil activity and is regulated by the civil law; but the household registration (name registration) is an administrative activity and is regulated by the administrative law. Therefore, this case is regulated by two types of laws (civil law and administrative law) in the application of law, but the lawsuit filed by citizens against the public security organs' household registration is an administrative lawsuit, which is completely correct.

Secondly, the present case deals with the application of law, namely how to understand article 99, paragraph 1, of the General Principles of Civil Law and article 22 of the Marriage Law. After the 11th session of the 12th National People's Congress Standing Committee made a legislative interpretation, the court made this judgment on the basis of the Interpretation, which is not improper.

Third, as to whether the 2014 legislative interpretation can be used as a judgment on the legality of administrative acts in 2009, does it violate the principle of "law not retroactive"? I think so. Since the law cannot be retroactive (unless it is in accordance with article 93 of the Legislation Law), the effect of the legislative interpretation should be retroactive to the effect of the interpreted law.

Fourth, the NPC Standing Committee's legislative interpretations are not too many in China's legislative history. This is a step forward, which shows that the NPC Standing Committee is making great efforts to promote the work of legislative interpretation. However, this time the interpretation spans a larger scale, and it is not so much an "interpretation" as a new "legislation". Moreover, this interpretation alone cannot solve the problems of naming (such as the limitation on the number of names, etc.), and I suggest that consideration could be given to the enactment of the Law on the Registration of Citizens' Names or the Law on the Naming of Citizens.

Fifth, before the NPC Standing Committee makes a legislative interpretation, it is no harm for our public security organs to agree that the parties concerned will register "Beiyan Yunyi" for their daughters. First, because the name of "Beiyan Yunyi" is nothing more than a "good wish" and does not constitute "harmful to social morality"; second, it can embody the rule of law principle of "public power - no power without authorization by law, and no power without private rights - freedom if the law does not prohibit it".

China's first Civil Code, promulgated in 2020, incorporates into the Civil Code the Interpretation of Article 99, Paragraph 1 of the General Principles of the Civil Law of the People's Republic of China and Article 22 of the Marriage Law of the People's Republic of China, which was issued by the Standing Committee of the National People's Congress on November 1, 2014. Article 1015 of the Civil Code of the People's Republic of China stipulates: "A natural person shall follow his father's surname or his mother's surname, but in any of the following circumstances, he may choose a surname other than the father's surname and his mother's surname: (1) the surname of another blood relative of a direct elder; (2) the surname of a dependent because he is supported by a person other than the legally-designated adopter; and (3) there are other legitimate reasons that do not violate public order and good customs." The surnames of natural persons of ethnic minorities may follow the cultural traditions and customs of their own ethnic groups. The controversy over the surname was finally settled.