The mainland has a complete law on marriage and family relations, but marriage and family are not harmonious. The reason for this is that the marriage and family law is not a confirmation of folk customs, but the policy is the basis for formulation, for example, the family planning policy affects the formulation of such things as the "Marriage Law" and the "Adoption Law". Accordingly, judicial interpretations must pay attention to folk customs, but the "annotation of the law" in the draft released on April 7 has obvious traces.
The relationship between folklore and marriage and family
1. The relationship between folk customs and marriage and family
The relative harmony of social life, marriage and family relations in most continental European countries is mainly due to a slow and gradual process of "bottom-up" law making to regulate social and family life. Among them, "from the bottom" refers to the formation of many folk customs, and "from above" refers to the selection of folk customs and making them into law through legal procedures.
Many Western countries are also not harmonious in society, marriage and family relations, such as the United States. The reason for this is that the United States and other Western countries do not have written civil laws, and precedents are the basis for resolving social and family relations. For example, the United States also has folklore, but its culture is diverse, while the United States Congress does not have the power to make laws, and the adjudication of marriage and family is also diverse.
In the history of Chinese law, when the "Civil Code" was formulated in the late Qing Dynasty, the marriage and family section was widely collected, but during the "Cultural Revolution", it was considered "feudal dross", but the "Marriage Law" enacted in 1950 still absorbed the reasonable part of it.
For example, article 24 provides that if there is no property acquired while living together (in the event of divorce) or if the property acquired while living together is insufficient to pay off (debts), the husband shall pay the debts.
For another example, the second paragraph of Article 19 stipulates that from the date of promulgation of this Law, if a revolutionary soldier has not had a correspondence with his family for two years, and his spouse requests a divorce, he may grant a divorce. The foregoing provision can be interpreted to mean that an ordinary person may also be granted a divorce if he has not been in a correspondence with his family for two years.
The Marriage Act of 1950 provides for the maintenance of stable family relations, although it has few provisions, i.e. only 25 articles except for the supplementary provisions. Among them, the provisions of Article 24 above play an important role, but according to the relevant provisions of the current Marriage and Family Code, once a woman "marries the wrong person", she will become a huge debtor. Accordingly, there are specific folk customs in the mainland, and there is no need to transplant Western laws, especially the "precedents" in the common law system.
The relationship between folklore and marriage and family
II. Policy Provisions of the Marriage and Family Section
After the implementation of the family planning policy on the mainland, the "Marriage Law" and the "Adoption Law" were revised or enacted to reflect the family planning policy to a greater extent. For example, the denial of de facto marriage, the insistence on the registration of adoption, is effective. The purpose of the above-mentioned provisions is to prevent the use of de facto marriage and adoption relationships to evade family planning obligations, but they have a profound impact on the civil rights and obligations in marriage and family relations.
For example, the effectiveness of adoption registration is consistent with family planning policies, but it is "very different" from mainland folklore. The impact of this is fully reflected in the column "The Effectiveness of Adoption" in today's statement, where an abandoned baby is de facto adopted, and after the death of the adoptive parents, the heir is an aunt. Since the family planning policy has been changed, there is no basis for the provisions on the effectiveness of adoption registration, and the judicial interpretation may adjust the relevant provisions in a timely manner according to the changes in the policy.
As far as de facto marriages are concerned, mainland folklore recognizes de facto marriages. Whether or not the "Marriage and Family Section" recognizes de facto marriages still needs to be determined through literal interpretation.
Article 6 of the Marriage Law of 1950 stipulates that a marriage shall be registered by both the man and the woman in person with the local people's government (district, township). Where a marriage is in accordance with the provisions of this Law, the local people's government shall issue a marriage certificate immediately. Accordingly, registration is not the only condition for the establishment of a marriage.
Article 1049 of the Civil Code provides,......。 "When the marriage is registered, the marriage relationship is established. "Establishment is not establishment, and the current law seems to recognize de facto marriages. "Where marriage registration has not been completed, the registration shall be re-registered. "Without re-registration, the marriage de facto exists, and the law in force confirms the de facto marriage.
Civil law theory, or judicial practice, does not recognize civil de facto marriages as worthy of discussion and attention. On February 1, 1994, the Ministry of Civil Affairs promulgated and implemented the Regulations on the Administration of Marriage Registration, and most scholars, or judicial interpretations, confirmed de facto marriages and illegal cohabitation on the basis of administrative regulations. According to the "Legislation Law" and other provisions, the basic civil system is a matter reserved by law, and administrative regulations cannot stipulate a civil system, and it is not a "joke" that the civil system stipulated by administrative rules is adopted by scholars or judicial interpretations.
3. There are obvious traces of "annotations" in the draft for comments
On April 7, 2024, the Supreme People's Court released the draft Interpretation (II) on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China. There are a total of 19 articles in the main body of the "Draft for Comments", and unlike in the past, this Draft summarizes the "key words" for the main text, for example, the first article is preceded by "[bigamy is not applicable in principle to the effect supplement]", and then the main text is narrated, and "the magic weapon of Peking University" is widely used.
The above methods are called "annotation of the law" in legal theory, for example, the traditional Chinese quotation of the Han and Han scriptures. However, the "magic weapon of Peking University" widely uses this method without "quoting scriptures", but simply summarizing legal provisions. For example, there is a theoretical controversy in the "Peking University Magic Weapon" that summarizes Article 3 of the Criminal Law as the "principle of legality of crimes", for example, there is no "law" in countries with unwritten law to adjudicate criminal cases based on precedents.
The same is true for the "Annotations" of the Consultation Draft, i.e., simply summarizing the legal provisions, and many of the "Annotations" are unnecessary, and some of the "Annotations" may violate the provisions of the Civil Code. The specific analysis of some selected clauses in this article is as follows:
"Handling of live streaming tipping payments for minors and one of the husband and wife (Article 5)", this "Note Law" may be considered unnecessary. For example, if a minor under the age of 8 commits tipping through an online livestreaming platform, the "minor under the age of 8" is incapable of civil conduct, and even if there is no judicial interpretation, most judicial personnel should find it invalid. The "Commentary" of this article is an overview of the validity of civil juristic acts in the Civil Code in general, and there is no need to reiterate it accordingly.
"In principle, bigamy does not apply to the correction of validity (Article 1)", and the proviso of this "Commentary" may violate the provisions of the Civil Code. For example, unless the other party has reason to believe that the legal marriage of the bigamist party has been dissolved or that the marriage does not exist. Bigamy is premised on the legal establishment of the first marriage, and there is no bigamy in the death of the former spouse. "There are grounds to believe that the legal marriage of one of the bigamists has been dissolved", and the bigamy party has deceived the other spouse to be deceased, which can be remedied.
"Settlement of disputes over cohabitation and property (Article 3)", this "Commentary" is in fact a treatment of de facto marriages. The Civil Code does not stipulate that de facto marriages are invalid, and that the "respective ownership" of property during cohabitation is not only inconsistent with the partnership relationship, but also contrary to the family marriage relationship. Accordingly, the aforesaid provisions are a further confirmation of the validity of the Regulations on the Administration of Marriage Registration.
There are obvious traces of "annotations" in the draft for comments
It is true that the "Annotation Law" of the Consultation Draft also has positive significance. Since there is no distinction between "law" and "jurisprudence" in mainland legal education, most legal people live as "legal scholars", which is reflected in judicial practice, and uncertain legal theories are often cited, presenting the same legal article or the same fact with different interpretations. In the foregoing sense, the "Annotated Law" of the Consultation Paper has the effect of unifying the application of law, but it cannot violate the basic principles of law.