Article 1072
There shall be no abuse or discrimination between stepparents and stepchildren.
The provisions of this Law on the relationship between parents and children apply to the relationship of rights and obligations between a stepfather or stepmother and a stepchild who is being raised and educated by him.
I. Purpose of this Article
This article is about the relationship of rights and obligations between stepparents and stepchildren.
II. Evolution of the Provisions
Before the founding of the People's Republic of China, due to the influence of the feudal patriarchal system, the social status of stepchildren was low, and their legitimate rights and interests were not protected. In some cases, stepparents are also not respected. After the founding of the People's Republic of China, the old feudal patriarchal concept was broken and the protection of the rights and interests of stepparents and stepchildren was raised to the level of law.
Article 16 of the original Marriage Act of 1950 stipulates: "A husband shall not abuse or discriminate against a child raised by his wife and born to a former husband or by a wife with respect to a child raised by his husband and born to his former wife." Although the concept of "stepparent" and "stepchild" is not explicitly mentioned in this article, the "children born to a former husband" and "children born to a former wife" in this article essentially refer to stepchildren. This article prohibits ill-treatment or discrimination against such children and makes it clear in law that they must be protected.
Article 21 of the original Marriage Act of 1980 continued the spirit of the original Marriage Act of 1950 and provided that: "There shall be no abuse or discrimination between stepparents and stepchildren. The rights and obligations between a stepfather or stepmother and a stepchild who is being raised and educated by him shall be governed by the relevant provisions of this Law on the relationship between parents and children. This article clearly puts forward the concepts of "stepparents" and "stepchildren", and points out a specific path on how to protect them, that is, "apply the relevant provisions of this law on the relationship between parents and children" to protect the legitimate rights and interests of stepparents and stepchildren, and treat the relationship between stepparents and stepchildren who meet the requirements on the same level as the relationship between biological parents and children. When the original Marriage Act was amended in 2001, no changes were made to article 21 of the former Marriage Act of 1980 and it was included in article 27.
This article of the Civil Code is derived from the provisions of Article 27 of the original Marriage Law, as amended in 2001, and is basically the same as the content of Article 27, with only some textual adjustments: the word "or" in paragraph 1 of Article 27 is amended to "or", the "or" in paragraph 2 of Article 27 is amended to "or", "rights and obligations" is amended to "the relationship of rights and obligations", and the "application of the relevant provisions of this Law on the relationship between parents and children" is amended to "the application of the provisions of this Law on the relationship between parents and children" , which is more precise in terms of verbal expression and more thoughtful in logic.
In the process of compiling the Civil Code, there were no substantive differences of opinion from all sectors of society on this article, and the opinions were basically the same. There have been no substantive changes to the provisions of this article in the previous drafts of the Civil Code or the draft for comments, but only textual adjustments have been made to make the content of the articles more uniform and standardized. Article 27 of the Civil Code on Marriage and Family (Draft) dated September 26, 2017 stipulates that "there shall be no abuse or discrimination between stepparents and stepchildren. The relationship of rights and obligations between a stepfather or stepmother and a stepchild who is being raised and educated by him or her is governed by the provisions of the law on the relationship between parents and children. Compared with Article 27 of the original Marriage Law, as amended in 2001, Article 27 of the Interior Draft amends the word "or" in paragraph 2 of Article 27 of the original Marriage Law, as amended in 2001, to "or", "rights and obligations" to "rights and obligations", and "the application of the relevant provisions of this Law on the relationship between parents and children" is amended to "the provisions of the applicable law on the relationship between parents and children", and other changes have not been made. This change is for the sake of the rigor of the wording of the provisions.
Article 27 of the Marriage and Family Section of the Civil Code (Draft for Solicitation of Comments) dated March 15, 2018 and Article 849 of the Civil Code Subparts (First Reading Draft) of August 27, 2018 both stipulate that "there shall be no abuse or discrimination between stepparents and stepchildren. The relationship of rights and obligations between a stepfather or stepmother and a stepchild who is being raised and educated by him or her is governed by the provisions of the law on the relationship between parents and children. "No changes have been made to Article 27 of the 2017 Civil Law Office Draft.
Article 849 of the Marriage and Family Section of the Civil Code (Second Reading Draft) dated June 17, 2019 stipulates that: "There shall be no abuse or discrimination between stepparents and stepchildren. The provisions of this Law on the relationship between parents and children apply to the relationship of rights and obligations between a stepfather or stepmother and a stepchild who is being raised and educated by him. Compared with Article 849 of the First Reading Draft of August 27, 2018, in the second paragraph of this article, "the provisions of the applicable law on the relationship between parents and children" are amended to "the provisions of this Law on the relationship between parents and children shall apply". This amendment is made because the Marriage and Family Section of the Civil Code is a law that specifically stipulates the rights and obligations between parents, children and other family members, and if there is no provision in the Marriage and Family Section, then it is difficult to have provisions in other laws, so logically speaking, it is more appropriate and rigorous to amend "law" to "this law".
Subsequently, Article 849 of the Marriage and Family Section of the Civil Code (Third Deliberation Draft) of October 15, 2019, Article 1072 of the Civil Code (Draft) on December 16, 2019, Article 1072 of the Civil Code (Draft General Assembly Deliberation Draft) on May 21, 2020, Article 1072 of the Civil Code (Revised Draft) on May 26, 2020, and the Civil Code officially adopted on May 28, 2020 Article 1072 continues the content of Article 849 of the Second Reading Draft of the Civil Code, and no changes have been made.
3. Interpretation of Provisions
This article regulates the relationship between stepparents and stepchildren.
Stepchildren refers to the husband's name for the children born to his wife and his ex-husband, or the wife to the children born to his husband and his ex-wife, that is, the name given by one spouse to the children born to the other spouse and his or her former spouse. Stepparent refers to the child's title for the mother's or father's subsequent spouse, i.e., stepfather and stepmother.
Stepparent-child relationship refers to the kinship relationship formed between stepparents and stepchildren due to the death of one of the parents, the remarriage of the other party with the child, or the remarriage of one or both of the parents raising the child due to the divorce of the parents.
In the relationship between stepparents and stepchildren, it is of paramount importance that there must be no abuse or discrimination between them, and in particular, stepparents must not abuse or discriminate against stepchildren. Violation of this obligation and causing damage to the other party constitutes a tortious act, and even constitutes a criminal act in a serious manner, and the perpetrator shall bear criminal responsibility.
According to the criteria for whether a parenting relationship is formed between a stepparent and a stepchild, there are three types of stepparent-child relationships.
(1) The relationship between stepparents and children who are related by direct consanguinity. In addition to the legal fact that the stepparent and the biological mother/father are married, the establishment of this relationship also requires the fact that the stepparent and stepchild have mutual support. In this case, the legal consequences of a stepparent-stepchild relationship are essentially the same as those of an adoptive parent-child relationship.
(2) The stepparent-child relationship of direct in-law. This stepparent-child relationship is determined by the fact that the stepparent is married to the biological mother/father, i.e. the relationship between the stepparent and the stepchild is formed as long as there is a legal fact that the stepparent is married to the biological mother/father. This kind of stepparent-child relationship belongs to the direct in-law and belongs to the blood relatives of the spouse, and does not constitute a blood relationship, and does not give rise to a relationship of rights and obligations between each other.
and (3) the stepparent-child relationship of incomplete adoption. The stepparent's upbringing of the stepchild is intermittent, interrupted, or temporary, and the stepparent-child relationship of incomplete adoption occurs.
In the first case, the relationship of rights and obligations between stepparents and stepchildren shall be governed by the provisions on the relationship of rights and obligations between legitimate children and their parents.
4. Cases
Zhang v. Zhou A and Zhou B, a dispute over alimony
Facts: After Zhang and Zhou got married, they jointly raised Zhou A and Zhou B, the daughters Zhou A and Zhou B born to Zhou and his ex-wife, and Zhang's son A born to his ex-husband. Later, Zhang and Zhou lived separately. Later, due to old age and illness, Zhang appealed to the court for Zhou A and Zhou B to pay alimony of 500 yuan per month. The court of first instance held that Zhang and Zhou jointly raised Zhou A and Zhou B, who were minors, after marriage, and that Zhang and Zhou A and Zhou B formed a stepmother-daughter relationship. Since the children have an obligation to support their parents, Zhou A and Zhou B were each sentenced to pay 100 yuan per month to Zhang. Zhang, Zhou Jia, and Zhou B were all dissatisfied with the first-instance judgment and appealed. The court of second instance held that Zhou A and Zhou B had an obligation to support Zhang, and that the judgment of the court of first instance was not improper based on the local living standards and the income of the parties.
5. Analysis
According to Article 27 of the Marriage Law on the relationship of rights and obligations between stepparents and stepchildren, Zhang has the right to request Zhou A and Zhou B to perform their maintenance obligations because they have fulfilled their obligations of support and education. A stepchild who is raised or educated by a stepfather or stepmother has the obligation to support his or her stepfather, and if the adult stepchild does not fulfill the maintenance obligation, the stepfather or stepmother who lacks the ability to work or has difficulties in living has the right to demand alimony from the adult stepchild. In this case, after Zhou A and Zhang got married, the underage Zhou A and Zhou B lived with their father Zhou and Zhang for a long time until they reached adulthood, and Zhang formed a stepmother-daughter relationship with Zhou A and Zhou B, and Zhou A and Zhou B should perform their obligation to support Zhang. As for alimony, it should be determined according to the local standard of living and the income of Zhou A and Zhou B. Article 1072 of the Civil Code inherits the provisions of the Marriage Law and will have the same legal effect when similar cases are tried under it.