Article 1075
An older brother or sister who can afford it has an obligation to support a minor brother or sister whose parents have died or whose parents are unable to support them.
Younger brothers and sisters who have been raised by older brothers or sisters who can afford it have the obligation to support their older brothers and sisters who lack the ability to work and lack a source of livelihood.
I. Purpose of this Article
This article regulates the obligation of support between siblings.
II. Evolution of the Provisions
Under normal circumstances, parents are legally obligated to support their children, and siblings do not have a relationship of rights and obligations between them to support and be supported. The maintenance relationship between siblings is not a normalized maintenance relationship as prescribed by law, and the original Marriage Law of 1950 did not stipulate the maintenance obligation between siblings.
However, in practice, it is not uncommon for an adult or affordable older brother or sister to support a minor brother or sister. Article 23 of the Marriage Law of 1980 stipulates that "an elder brother or sister who can afford it shall have the obligation to support a minor brother or sister whose parents have died or whose parents are unable to support them." ”
With the development of society, the situation that older brothers and sisters need to be supported by younger brothers and sisters has gradually emerged. However, Article 23 of the original Marriage Law of 1980 only reflected the one-way relationship of rights and obligations between brothers and sisters, ignoring the two-way nature of rights and obligations between them, which could not meet the needs of real life, and judicial practice urgently needed the legal basis for dealing with such cases.
On September 1, 1981, the Supreme People's Court issued the "Reply on Whether an Elderly and Childless Person Can Bear the Obligation to Support Brothers and Sisters Who Can Afford It by Analogy in Accordance with Article 23 of the Marriage Law" in response to the request of the Shanghai Municipal High People's Court, the main contents of the reply are: "Your court (81) Hu Gao Min Du Zi No. 54 'Report on the Request for Instructions on Whether the Elderly and Childless Persons Can Be Sentenced to Bear the Obligation of Support by Analogy with Article 23 of the Marriage Law'. After research, I basically agree with the opinion of your hospital. With reference to the spirit of the relevant provisions of the Marriage Law and the principle of consistency of rights and obligations, Li Peiyuan and Li Li should bear the obligation to support Li Hexiu, but it is not appropriate to use the term 'analogy'. In handling the case, it is necessary to rely on the organizations of Li Peiyuan, Li Li, and other units to provide them with ideological education. And mainly on the basis of their economic conditions, strive for mediation settlement. ”
Article 26 of the original Opinions on Several Issues Concerning the Implementation of Civil Policy Laws, promulgated by the Supreme People's Court on August 30, 1984, stipulates that: "A younger brother or sister who is raised by an older brother or sister and who can afford it has the obligation to support the elder brother or sister who has lost the ability to work and is lonely. "It responds to the needs of reality through judicial interpretation, stipulating that under certain conditions, younger brothers and sisters also have the obligation to support their younger brothers and sisters.
When the original Marriage Law was amended in 2001, the relevant experience of judicial interpretations was drawn on and Article 23 of the original Marriage Law of 1980 was improved and supplemented. Article 29 of the Marriage Law, as amended in 2001, stipulates that "an older brother or sister who can afford it shall have the obligation to support a minor brother or sister whose parents have died or whose parents are unable to support them." Younger brothers and sisters who have been raised by older brothers or sisters who can afford it have the obligation to support their older brothers and sisters who lack the ability to work and lack a source of livelihood. Compared with Article 23 of the original Marriage Law of 1980, the following amendments and improvements have been made to this article: (1) the text has been changed to "the elder brother and sister who can afford it" is amended to "the brother or sister who can afford it", and the more commonly used language is used; (2) the "support" of the younger brother or sister to the minor brother or sister is amended to "support", which is more precise in legal terms, because "support" usually refers to the behavior of the elders to the younger generations, and "support" can refer to the behavior between peers, and the brothers and sisters are all equals, so "support" is more accurate in legal terms (3) The addition of a provision that "a younger brother or sister who has been raised by an elder brother or sister and can afford it shall have the obligation to support the elder brother or sister who lacks the ability to work and lacks the means of subsistence". This stipulation conforms to the mainland's traditional morality of close relatives and mutual assistance, embodies the spirit of the law that aligns rights and obligations, and strengthens the protection of the survival interests of older brothers and sisters who lack the ability to work and lack a source of livelihood.
The provisions of this article of the Civil Code on the obligation to support older siblings and younger siblings are basically the continuation of the content of Article 29 of the original Marriage Law, as amended in 2001. Compared with Article 29 of the original Marriage Law, as amended in 2001, only minor adjustments to the text and adjustments to the paragraphs have been made, and there are no obvious substantive changes in the specific content: (1) the word "or" is amended to "or", and the word "of" in "minor brother or sister" is deleted to make the wording smoother; (2) the obligation of the elder brother and sister to support the younger brother and sister, and the younger brother and sister to the elder brother and sister, and the younger brother and sister to the younger brother and sister. The sister's maintenance obligation is divided into two paragraphs, and this change can make the article clearer, and at the same time, it is also conducive to more specific and accurate application of the law in judicial practice. In addition, there are no other changes.
3. Interpretation of Provisions
This article regulates the obligation of siblings to support each other.
An older brother or sister who can afford it has an obligation to support a minor brother or sister whose parents have died or whose parents are unable to support them.
Siblings are the closest collateral blood relatives and have a duty of support to each other. When one party needs support, the other party shall fulfill the obligation to support. This article is also relatively restrained in stipulating the obligation of support between siblings, and only stipulates that the elder brother or sister who can afford it has the obligation to support the minor brother or sister whose parents have died or whose parents are unable to support them. Younger brothers and sisters who are raised by older brothers or sisters who can afford it have an obligation to support their older brothers and sisters who lack the ability to work and lack a source of livelihood. For example, should the obligation of a brother or sister to support a younger brother or sister be conditional on affordability? Is it necessary for a younger brother or sister to support their brother and sister as a precondition for them to grow up? Obviously not. It should therefore be established that siblings have a mutual obligation to support each other, but to varying degrees according to their own affordability.
4. Cases
Zhao Yi v. Zhao Jia, a maintenance dispute
Facts: After the death of his parents, Zhao Jia raised Zhao B. Zhao Yi has two adult sons. Zhao Yi appealed to the court for Zhao A to perform his maintenance obligations. The court of first instance held that the younger brother or sister who was supported by the elder brother or sister had the obligation to support the elder brother or sister who was old and had no supporter when they reached adulthood, but Zhao Jia's two adult sons did not fall under the situation of having no supporter, so Zhao Jia's claim did not comply with the law. Zhao Jia was dissatisfied with the first-instance judgment and appealed. The court of second instance held that Zhao Jia had two adult sons, and there was no evidence to prove that his two sons were not able to support him, and Zhao Jia did not submit evidence to prove that he was unable to work and lacked a source of livelihood, so Zhao Yi did not have the obligation to support Zhao Jia.
5. Analysis
According to article 29 of the Marriage Law, Zhao Yi has no obligation to support Zhao Jia because he does not lack the ability to work and the source of livelihood. A younger brother or sister who supports a brother or sister should also meet the following three conditions: first, the younger brother or sister is raised by the elder brother or sister, second, the younger brother or sister who needs to support the elder brother or sister has the ability to support the elder brother or sister, and third, the elder brother or sister who needs to be supported by the younger brother or sister lacks the ability to work and lacks a source of livelihood. The focus of this case is whether Zhao Yi and Zhao Jia meet the above conditions. Although Zhao Yi and Zhao Jia met the first two conditions, they did not meet the third condition, because Zhao Jia had two adult sons, and they were not unable to support Zhao Jia, and there was no evidence to prove that Zhao Jia lacked a source of livelihood, so Zhao Yi had no obligation to support Zhao Jia.