Article 1058
Husband and wife equally enjoy the right to raise, educate and protect their minor children, and jointly bear the obligation to raise, educate and protect their minor children.
I. Purpose of this Article
This article is a principled provision on the equal enjoyment and joint responsibility of husband and wife with respect to the upbringing, education and protection of minor children.
II. Evolution of the Provisions
Paragraph 1 of Article 13 of the original Marriage Law of 1950 stipulates that: "Parents have the obligation to raise and educate their children, and children have the obligation to support and support their parents, and neither parent shall abuse or abandon them." The original Marriage Law of 1980 continued the spirit of this provision, and its article 15, paragraphs 1~3 stipulate: "Parents have the obligation to raise and educate their children, and children have the obligation to support and support their parents. If the parents fail to fulfill the obligation to support them, the child who is a minor or who is unable to live independently has the right to demand maintenance from the parents. In the event that a child fails to fulfill his or her maintenance obligations, the parent who is unable to work or who is in difficulty in living has the right to demand maintenance from the child. Article 17 states: "Parents have the right and duty to discipline and protect their minor children. Parents are obliged to compensate for economic losses caused by minor children to the State, the collective or others. "When the original Marriage Law was amended in 2001, the spirit of the above-mentioned provisions of the original Marriage Law of 1980 was inherited. Paragraphs 1~3 of Article 21 of the Marriage Law, as amended in 2001, have not changed anything from the aforementioned provisions of Article 15 of the Marriage Law in 1980. Article 23 of the original Marriage Law, as amended in 2001, only adjusted Article 17 of the original Marriage Law in 1980 in terms of wording, and there is no difference in substance.
The above-mentioned provisions of the original Marriage Law all elaborate on the relationship between parents and children from the perspective of their rights and obligations. In terms of form, the provisions of Article 1058 of the Civil Code are closely related to Articles 21 and 23 of the original Marriage Law of 2001, but in practice they are not identical. Article 1058 of the Civil Code stipulates that husband and wife enjoy equal rights and assume equal obligations in the upbringing, education and protection of their children, aiming to stipulate the relationship between parents and children from the perspective of husband and wife, emphasizing that the rights and obligations of husband and wife in the upbringing, education and protection of minor children are equal, and there is no distinction between superior and inferior. From the perspective of the content of the law, paragraphs 2~3 of Article 21 of the original Marriage Law, amended in 2001, were inherited by Article 1067 of the Civil Code, and Article 23 was inherited by Article 1068 of the Civil Code. Article 1067 of the Civil Code stipulates: "If the parents fail to fulfill the obligation to support them, the minor children or adult children who are unable to live independently shall have the right to demand the payment of maintenance from the parents." Parents who fail to perform their obligation to support their adult children, who lack the ability to work or who have difficulties in living, have the right to demand maintenance from their adult children. Article 1068 of the Civil Code stipulates: "Parents have the right and duty to educate and protect their minor children. Where minor children cause harm to others, parents shall bear civil liability in accordance with law. From this point of view, this article is actually a new norm established in the section on marital relations in the marriage and family section of the Civil Code, which aims to stipulate the relationship between parents and children from the perspective of husband and wife relations, emphasizing that the rights and obligations of husband and wife to raise, educate and protect minor children are equal, and there is no distinction between superior and inferior.
3. Interpretation of Provisions
This article is a provision for joint parental authority.
Parental authority refers to the rights and obligations of parents to discipline and protect their minor children in terms of their person and property. In modern law, the most important and core part of the effectiveness of the parent-child relationship is parental authority. Parental authority in modern kinship law is joint parental authority.
Joint parental authority refers to the joint exercise of parental authority, that is, the exercise of parental authority should be decided by the parents with common will, and the parents jointly represent the children externally. The principle of parental authority before the principle of joint parental authority is the principle of paternal authority, which is a product of the principle of inequality between men and women, and embodies the inequality of personality in kinship law. In modern times, due to the rise of the concept of equality between men and women, the legislation of various countries has replaced the principle of paternal authority with the principle of common parental authority, and the equality of men and women in the field of parental authority has been truly realized.
Joint parental authority includes the following main elements.
(1) Parental authority is the equal right of parents, and there is no distinction between higher and lower.
(2) Parental authority is a common right of parents and a right of a whole. The father and mother are joint parental authorities, and parental authority cannot be divided, and the father and mother enjoy it separately.
(3) The exercise of parental authority shall be carried out jointly by the parents. When exercising parental authority, it shall be decided by the parents on the basis of their common will, and the exercise of the right of mutual agency in accordance with the rights of the spouse alone shall be deemed valid, but the act of parental authority expressed by one parent contrary to the will of the other parent shall be invalid.
The principle of joint parental authority by parents is premised on the existence of a marital relationship between the parents, so that after the divorce of the parents, parental authority is exercised by the parent who lives with the minor child. Parental authority for a child born out of wedlock is exercised by the mother and, when claimed, by the parents.
Parents exercise parental authority jointly, and when the expressions of intent are inconsistent, the rule is:
(1) In general matters, the principle of joint parental authority does not preclude the independence of the parents
Reason. These matters are irrelevant to the overall situation, and the parents' inconsistencies do not give rise to legal problems.
(2) In the case of important matters, if the parents do not agree and cannot exercise parental authority together, appropriate measures must be taken to resolve them. In practice, the principle of parental consultation should first be adhered to, and when parents have a dispute on a major issue and cannot reach a unified opinion, the person with parental authority should be allowed to file a lawsuit with the court, and the court shall make a judgment in accordance with the principle of the interests of the child.
4. Cases
Zhuang v. Tao Jia, a maintenance dispute
Facts: After Tao A and Zhuang went through the marriage registration, they gave birth to Tao B. The parties divorced by mutual agreement due to conflict. The divorce agreement stipulates that Tao Yi will be raised by Zhuang. One day, when Tao Jia visited Tao Yi, he took him away and refused to send him to a certain place in Zhuang. Zhuang appealed to the court for Tao Yi to be raised by him. The court of first instance held that Tao Yi was under the age of two, and the parties had also agreed in the divorce agreement that Tao Yi would be raised by Zhuang, so Tao Yi living with his mother Zhuang was beneficial to his growth. Tao Jia was dissatisfied with the first-instance judgment and appealed. The court of second instance held that Tao Yi was under the age of two when the first-instance judgment was rendered, and that it was not improper for the first-instance judgment to determine that Tao Yi was living with Zhuang in accordance with the principles of benefiting the children's physical and mental health and protecting the legitimate rights and interests of the children, taking into account factors such as the child's gender, age, growth environment, and living conditions.
5. Analysis
According to article 21 of the Marriage Law, Zhuang has the right to request that Tao Yi be directly raised by him. During the existence of the marital relationship, the husband and wife jointly exercise parental authority over their minor children, but the parental authority of the parent who does not live with the minor children after the divorce is still being exercised, except for some of the remaining ones, has been suspended. The content of parental authority that has been suspended cannot be exercised without the consent of the person with parental authority. However, if the parental authority of the party living with the minor child abuses parental authority or other conduct, which is obviously detrimental to the interests of the child, the other party may request a change in the ownership of custody. The focus of this case is whether Tao Jia's rights were infringed upon when he took Tao Yi away and raised him directly. Tao Jia knew that he did not have the right to directly raise Tao B, and without Zhuang's consent, he took Tao B back to his home to raise him without Zhuang's consent, which hindered Zhuang's exercise of parental authority, so Zhuang had the right to demand Tao A to return Tao B.