Public Interest Law Popularization Bulletin, Issue 46, 2024
From May 11th to 12th, the "Ask the Law in Hunan" column of the red network received a total of 78 replies from lawyers, and the main consulting areas were marriage and family affairs, loan guarantees, property infringement, labor security, etc.
The enthusiastic lawyers mainly include: He Xiaoyan of Hunan Riyueming Law Firm, Hu Juan of Hunan Rujin Law Firm, Wang Chaohui of Hunan Tongcheng Law Firm, and Zhou Bo of Hunan Tongcheng Law Firm.
Lawyer Response Picks 1
If I am married and have children full-time, can I claim financial compensation in the event of a divorce?
2
Can I still take out a loan in my own name after being a guarantor?
3
The car is parked in someone else's position, and the other party has scratched my car, can I ask for compensation?
4
What is the compensation standard for the death of an employee due to illness?
5
If the company reduces the employee's salary without the employee's consent, can it apply for labor arbitration?
6
If the woman terminates the pregnancy, does the man have the right to disagree?
01
Shaoyang netizen: I want to divorce because of the other party's domestic violence, I have been married for 14 years, and I take care of my children full-time after marriage, he has no serious job and no savings, can I ask for financial compensation? How much is the amount? Is there a legal provision for it? Hunan Riyueming Law Firm
Lawyer He Xiaoyan
Hello, depending on the situation you have described, it is possible to claim appropriate compensation.
The Civil Code stipulates that in the event of divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; If an agreement is not reached, the people's court shall make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party.
If one of the spouses bears more obligations due to raising children, taking care of the elderly, assisting the other party in work, etc., he or she has the right to request compensation from the other party at the time of divorce, and the other party shall give compensation. The value of family work should be respected. The spouse who has contributed more in the upbringing of children, the care of the elderly, etc., has provided services and facilitation for family life, and has the right to financial compensation in the event of divorce. Therefore, you can make such a claim in divorce proceedings, and it is recommended that you also collect relevant evidence.
Legal Links:
Article 1087 of the Civil Code of the People's Republic of China
In the event of a divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; If an agreement is not reached, the people's court shall make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party.
The rights and interests enjoyed by husbands or wives in the contracting and management of family land shall be protected in accordance with law.
Article 1088
If one of the spouses bears more obligations due to raising children, taking care of the elderly, assisting the other party in work, etc., he or she has the right to request compensation from the other party at the time of divorce, and the other party shall give compensation. The specific measures shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment.
2
Changde netizen: I have a sister who said that the company wanted a loan and asked me to be a guarantor, only to find out later that it was a loan of 500,000 yuan. Now I'm worried that I'll be prosecuted if I don't. I now want to buy my own car, but she told me that I can't take out a loan in my own name and that the credit may have been affected. What should I do? Hunan Riyueming Law Firm
Hello lawyer He Xiaoyan, the loan is not necessarily related to whether you have external guarantees, but to review your repayment ability and the collateral you can provide. If you say that the credit investigation is affected, it should be that the bank has overdue or is involved in litigation and enforcement, in which case you can only qualify for the loan if you have to settle the debt problem first. The above is the lawyer's personal opinion and is for reference only. 03
Yueyang netizens:
Hello, I parked in the other party's parking space, but he scratched my body and damaged the tires, can I ask him for compensation?
Hunan Riyueming Law Firm
Hello lawyer He Xiaoyan, if you can identify the infringer and the infringement, you can claim compensation. Although there is an impropriety in your occupation of the other party's parking space, it does not mean that it has the right to damage your property, and its behavior constitutes infringement and should bear the liability for compensation. It is recommended that you communicate with them in advance to see if they can negotiate a solution. If the negotiation fails, you can sue to protect your rights, but it is also recommended that you consider whether to file a lawsuit based on the size of the loss and the cost of rights protection. Link to legal provisions: Article 67 of the Civil Procedure Law stipulates that the parties have the responsibility to provide evidence for their own claims. The parties have the responsibility to provide evidence to prove the facts on which their claims are based or on which they refute the claims of the other party. Where there is no evidence or the evidence is insufficient to prove the factual assertions of the parties, the party bearing the burden of proof shall bear the adverse consequences. The above is the lawyer's personal opinion and is for reference only. 04
Changde netizens:
After 20 years of service, I died due to illness, I want to ask how the compensation standard is stipulated, and how much money can I get every month?
Hunan Rujin Law Firm
Hello lawyer Hu Juan, if an in-service employee dies due to illness, his surviving family members can receive funeral subsidies and pensions. 1. Funeral subsidy: After the death of an employee due to illness or non-work-related reasons, the unit where the deceased belongs will pay a funeral subsidy of six months of the average social salary of the local employee in the previous year.
2. Relief expenses for supporting immediate family members: After the death of an employee due to illness or non-work-related reasons, a one-time relief fee for supporting immediate family members will be paid for 24-32 months according to the number of immediate family members supported by the deceased during his lifetime.
Link to the law: Article 17 of the Social Insurance Law of the People's Republic of China If an individual who participates in the basic endowment insurance dies due to illness or non-work-related reasons, his surviving family members can receive funeral subsidies and pensions; Those who completely lose their ability to work due to illness or non-work-related disability when they have not reached the statutory retirement age may receive sickness and disability allowance. The required funds are paid from the basic pension insurance fund. The above is the lawyer's personal opinion and is for reference only. 05
Zhuzhou netizens: The company said that due to financial reasons, all employees should reduce their salaries, and the policy is to reduce 10% and then save 10%, and the 10% of the savings will be issued at the end of the year. Now the company owes three months of wages and has not been paid, can this be arbitrated? How to assert arbitration claims?
Hunan Tongcheng Law Firm
Hello Mr. Wang Zhaohui, the salary reduction is a change in the content of the labor contract, the employer and the employee need to reach an agreement and take written form, and the arrears of wages are also illegal, you can apply for arbitration, and the arbitration request can require the payment of the deducted wages and arrears of wages to continue to perform the labor contract, or you can request the termination of the labor contract to pay the deducted wages, arrears of wages and economic compensation (for details, please refer to Article 47 of the Labor Contract Law below for details). Link to the law: Article 50 of the Labor Law Wages shall be paid to the worker in the form of money on a monthly basis. Wages shall not be deducted or unjustifiably delayed. Article 30 of the Labor Contract Law stipulates that the employer shall pay the labor remuneration to the employee in full and in a timely manner in accordance with the provisions of the labor contract and the provisions of the state. If the employer is in arrears or fails to pay the labor remuneration in full, the worker may apply to the local people's court for a payment order in accordance with the law, and the people's court shall issue a payment order in accordance with the law. Article 35 The employer and the worker may change the content of the labor contract if they reach a consensus through consultation. Modification of the labor contract shall be in written form. The amended labor contract shall be held by the employer and the employee. Article 47 Economic compensation shall be paid to the worker according to the number of years he or she has worked in the unit and one month's salary for each full year. where it is more than six months but less than one year, it is calculated as one year; If it is less than six months, the worker shall be paid half a month's salary. If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year as announced by the people's government of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of severance shall be paid to him at the rate of three times the average monthly wage of the worker, and the maximum period of payment of severance shall not exceed 12 years. The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract. The above is my personal opinion and is for reference only. 06
Huaihua netizens:
It's been a few months since I got the license, I've been living together for more than a year, and now I'm almost 7 months pregnant, I want to unilaterally terminate the pregnancy, the bride price has been fully refunded, does the man have the right not to agree to terminate the pregnancy?
Hunan Tongcheng Law Firm
Hello lawyer Zhou Bo, reproductive rights are a basic right granted by law to citizens, husband and wife have their own reproductive rights, and husband and wife should respect each other in exercising reproductive rights, and cannot force, order or impose their own will on each other. Due to the differences between men and women in terms of gender, physiology and division of labour, the husband's reproductive rights can only be achieved through the wife. Although the termination of a pregnancy by a wife without her husband's consent may cause irreparable damage to the feelings of the husband and wife, the husband cannot use his own reproductive rights against his wife's reproductive rights. In view of the fact that the birth of children is still one of the important functions of most families in the mainland, it is recommended that the two parties negotiate and deal with it, and if the negotiation fails, they can choose divorce by agreement or litigation. Link to legal provisions: Article 1055 of the Civil Code of the People's Republic of China Husband and wife have equal status in marriage and family. Article 1079:Where one of the husband and wife requests a divorce, the relevant organization may conduct mediation or directly initiate divorce proceedings in the people's court. People's courts hearing divorce cases shall conduct mediation; If the relationship has indeed broken down and mediation fails, the divorce shall be granted. In any of the following circumstances, if mediation fails, a divorce shall be granted: (1) bigamy or cohabitation with another person; (2) Committing domestic violence or abusing or abandoning family members; (3) Having gambling, drug abuse, or other vices that have been repeatedly taught; (4) They have been separated for two years due to emotional discord; (5) Other circumstances that lead to the breakdown of the relationship between husband and wife. Where one party is declared missing and the other party initiates divorce proceedings, the divorce shall be granted. Where, after a people's court has ruled that divorce is not permitted, the parties have been separated for one year, and one party initiates divorce proceedings again, the divorce shall be granted. Article 51 of the Law of the People's Republic of China on the Protection of Women's Rights and Interests: Women have the right to give birth to children in accordance with relevant state provisions, and also have the freedom not to have children. Interpretation of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China (1) Article 23: Where a husband requests damages on the grounds that his wife has violated her reproductive rights by terminating her pregnancy without authorization, the people's court will not support it; Where a dispute arises between the husband and wife over whether or not to have children, and the relationship has truly broken down, and one party requests a divorce, the people's court shall handle it in accordance with the provisions of Article 1079, Paragraph 3, Item 5 of the Civil Code. The above is the lawyer's personal opinion and is for reference only. Source: Red Network "Ask Hunan" column Editor: Peng Mengying