Article 128
Where laws have special provisions on the protection of the civil rights of minors, the elderly, the disabled, women, consumers, and so forth, follow those provisions.
I. Purpose of this Article
This article is about the special protection of the civil rights of specific subjects.
II. Evolution of the Provisions
Prior to the original General Provisions of the Civil Code, article 104 of the original General Principles of the Civil Law provided that marriage, family, the elderly, mothers and children were protected by law. The lawful rights and interests of persons with disabilities are protected by law. For example, the concept of "children" was amended to "minors", which was easier to grasp in terms of age in practice, corresponding to the laws on the protection of minors in mainland China; In addition, the specific civil subject of the consumer has been added to correspond to the Law on the Protection of Consumer Rights and Interests, the Food Safety Law and other laws.
On the whole, Article 128 of the original General Provisions of the Civil Law incorporates the protection of specific civil subjects into the general law from the perspective of civil subjects, which provides a legal basis for the application of civil rights and obligations provisions in the special law to regulate and protect the provisions of civil rights and obligations in the special law, reflects the echo of the original General Provisions of the Civil Law and the norms of the special law and the civil law, and is also the application of the principle of equality in the civil law in specific norms. This provision is reserved in the Civil Code.
3. Interpretation of Provisions
This article is a special law of civil law for the protection of rights.
This article is in line with the provisions of Article 11 of the Civil Code, and the laws that have been enacted, such as the Law on the Protection of Minors, the Law on the Protection of the Rights and Interests of the Elderly, the Law on the Protection of the Rights and Interests of Persons with Disabilities, the Law on the Protection of the Rights and Interests of Women, and the Law on the Protection of the Rights and Interests of Consumers, are all laws that provide special protection for the rights of a certain category of vulnerable groups, and these protected rights are mainly civil rights, so they are special laws of the civil law and an integral part of the civil law system. The General Provisions of the Civil Code integrate the relationship between the common law of the civil law and the special law of the civil law by stipulating the provisions of the special law of the civil law, so as to realize the integration of the civil law system, without making the special law of the civil law free from the civil law, and the protection method of private law cannot be applied to protect the civil rights of these vulnerable groups, and the civil law system is fragmented.
Where laws other than the Civil Code are themselves special laws of the civil law, in the identification of special laws of the civil law, it is necessary to identify those norms that do not belong to the special laws of the civil law in the laws of the special laws of the civil law. Whether it is a separate law of commercial law, a separate law of intellectual property law, as well as the Law on the Protection of Consumer Rights and Interests, the Law on the Protection of Minors, the Law on the Protection of Persons with Disabilities, the Law on the Protection of Women's Rights and Interests, etc., the main legal norms are civil legal norms. The non-civil legal norms contained therein are not special laws of civil law and do not have the effect of priority in the field of civil law, but should be applied in accordance with the methods of application of public law. Their identification should be measured according to the elements of "other" and "special", and if they do not have these elements, they are not special laws of civil law, and the effect of their application of civil law is excluded.
4. Cases
Case of Ke Moujia and Zhang Jia's change of custody relationship
Facts: Plaintiff Ke Moujia and defendant Zhang Jia registered their marriage and gave birth to three children. Later, the parties divorced, and the parties agreed that all three children would be raised by the defendant Zhang Jia. Due to the defendant's busy work and other reasons, the three children have been living in the defendant's mother's house. Now the plaintiff Ke Moujia has a dispute with the defendant over the issue of changing the custody of his second son born in wedlock, and sues the court. It was also ascertained that the plaintiff Ke Moujia had not remarried and had undergone ligation surgery, and submitted a note written by his second son, in which he expressed his willingness to live with the plaintiff Ke Moujia. The court held that both the plaintiff and the defendant had the right and obligation to raise and educate their children, and that the second son had clearly expressed his willingness to live with his mother, and that the plaintiff had lost the ability to have children due to sterilization, and that the reasonable demands of the woman should be taken care of under conditions conducive to the rights and interests of the children.
5. Analysis
Article 128 of the Civil Code stipulates that if the law has special provisions on the protection of the civil rights of minors, the elderly, the disabled, women, consumers, etc., such provisions shall be followed. This article embodies the special protection for special civil subjects, i.e., minors, the elderly, the disabled, women, consumers, etc., and this article guides that if there is a special law that has special provisions on the above-mentioned civil subjects, the special law shall apply. In this case, the plaintiff has lost her fertility due to sterilization, and according to Article 3 of the Several Specific Opinions of the Supreme People's Court on the Handling of Child Support Issues in Divorce Cases by People's Courts, "for a minor child over the age of two, if both the father and the mother request to live with the child, and one party has any of the following circumstances, priority may be given to it: (1) the child has been sterilized or has lost the ability to have children due to other reasons" and Article 50 of the Law on the Protection of Rights and Interests of Women" In the event of divorce, if the woman loses the ability to bear children due to sterilization or other reasons, the reasonable requirements of the woman shall be taken into account under the condition that the rights and interests of the children are conducive to the rights and interests of the children".