Article 1074
Grandparents who can afford it have the obligation to support their minor grandchildren whose parents have died or whose parents are unable to support them.
Grandchildren who can afford it have the obligation to support their grandparents who have died or whose children are unable to support them.
I. Purpose of this Article
This article regulates the obligation of maintenance and maintenance between grandparents and grandchildren.
II. Evolution of the Provisions
Grandparents and grandchildren are direct blood relatives of the next generation, and there is generally no legal obligation to raise or support them. The original Marriage Law of 1950 did not stipulate the obligation of grandparents and grandchildren to raise and support each other. However, with the development of society, based on various factors such as traditional customs, kinship feelings, real living conditions and social security, the original Marriage Law of 1980 stipulated that grandchildren and grandchildren should bear the obligation of raising and supporting each other under certain conditions. Article 22 of the original Marriage Law of 1980 stipulates that "grandparents who can afford it shall have the obligation to support their minor grandchildren whose parents have died." Grandchildren who can afford it have the obligation to support their grandparents who have died. Articles 24 and 25 of the original Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of Civil Policy and Law, promulgated on August 30, 1984, further explain this. Article 24 of the Opinions stipulates: "In accordance with the spirit of Article 22 of the Marriage Law, grandparents who can afford it have the obligation to support their minor grandchildren who are deceased by one parent, the other parent is truly incapable of raising them, or both parents have lost the ability to support them. Article 25 stipulates: "A grandchild who can afford it shall have an obligation to support his or her grandparents who have died or whose children are truly unable to support them." "When the original Marriage Law was amended in 2001, the relevant content of the judicial interpretation was absorbed, and the provisions of Article 22 of the original Marriage Law of 1980 were supplemented and improved. Article 28 of the former Marriage Law, as amended in 2001, stipulates that "grandparents who can afford it shall have the obligation to support their minor grandchildren whose parents have died or whose parents are unable to support them." Grandchildren who can afford it have the obligation to support their grandparents who have died or whose children are unable to support them. Compared with Article 22 of the original Marriage Law of 1980, the provisions of "minor grandchildren and grandchildren whose parents are unable to support them" and "grandparents and maternal grandparents whose children are unable to support them" have been added.
This provision is basically a continuation of the content of the original article 28 of the Marriage Law, as amended in 2001. Compared with article 28 of the original Marriage Law of 2001, only minor adjustments have been made to the text, and there are no obvious substantive changes: the word "or" has been amended to "or", and the word "of" in the phrase "minor grandchildren" has been deleted to make the wording smoother. In addition, there are no other changes to this article.
3. Interpretation of Provisions
This article stipulates the obligation of grandparents and grandchildren to support each other.
The obligation of grandparents to support each other with their grandchildren is the specific content of kinship rights. Because grandparents have a direct blood relationship with their grandchildren, they are closely related by blood, so they have the obligation to support each other. Grandchildren have an obligation to support their grandparents, and grandparents have an obligation to support their grandchildren.
This article restricts the obligation to support grandparents and grandchildren, and only stipulates that grandparents who can afford it have the obligation to support their minor grandchildren whose parents have died or whose parents are unable to support them. Similarly, grandchildren who can afford it have the obligation to support their grandparents who have died or whose children are unable to support them. If a party is not able to afford it, or is unable to afford it, the obligation to support or support it may be appropriately derogated from or even waived.
4. Cases
Liu v. Liu Jia et al., a maintenance dispute
Facts: Liu has three sons: Liu Mouda, Liu Jia, and Liu B. The three sons agreed to pay 100 yuan per month to Liu. One day, Liu Mouda died, leaving behind a son, Liu Bing. Liu appealed to the court and requested Liu A and Liu B to pay 376 yuan per month for alimony. The court of first instance held that in addition to Liu A and Liu B, Liu's grandson Liu Bing also had the obligation to support, so the three should jointly bear Liu's living expenses and medical expenses. Liu Yi was dissatisfied with the first-instance judgment and appealed. The court of second instance held that Liu B and Liu A were not unable to support the elderly, so the first-instance judgment found that Liu Mouda's son Liu Bing was the obligor of support, which had no factual and legal basis and should be corrected.
5. Analysis
According to Article 28 of the Marriage Law, Liu Bing has the right not to assume the obligation to support Liu. When the children of the grandparents who need support them die or are unable to support them, only the grandchildren who can afford them have the obligation to support the grandparents. If the grandparent's child is alive or has the ability to support the grandparent, the grandchild has no obligation to support the grandparent. The focus of this case is whether Liu Bing has the obligation to support Liu. Although one of Liu's three sons is deceased, he still has two other sons, Liu A and Liu B, and the available evidence confirms that they are not unable to support the elderly, so Liu Bing, as a grandchild, has no obligation to support Liu.