preface
The 28-year life misalignment case continues to attract attention, and continues to derive the case within the case, surrounding the 28-year life dislocation, two families, a hospital, and multiple parties involved.
Because of the bizarre circumstances of the case, even the author of the novel will not write about this, and the legislators did not foresee such a thing when legislating, so that there are more or less gaps in the law, so that the series of cases is sometimes not very clear in the law and is prone to controversy. In this series of cases, the intersection of love, reason and law tests the wisdom of lawyers and adjudicators on both sides.
It is precisely because the plot of this case is more complex and bizarre, and even many legal "gaps" have appeared, and in these cases, some of them are destined to be written into law textbooks in the near future, or become classic teaching cases in law schools. Therefore, it is of great practical significance to discuss and study these cases, whether in academic and judicial practice, or in the popularization of law to the public.
This article sorts out the difficult legal issues involved in the series of cases, in order to cause unnecessary controversy, at the beginning of the chapter, the author also specifically states that this article is not intended to be involved in the war of words between all parties, does not preset any position, completely remains neutral, according to the information publicly disclosed on the Internet, from a purely professional academic point of view, only as a personal academic point of view, does not constitute any legal opinion, and does not represent the result of the adjudication.
Let's take a look at which of these cases may be written in law school textbooks:
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<h1 class="pgc-h-center-line" data-track="11" >if Du and his wife sue Guo Wei for pension can they win? </h1>
Today's topic is just a hypothesis, and it has not actually happened so far. However, from the perspective of law popularization or legal research, this issue is worth exploring, and it also has the typical significance of being written into textbooks. Therefore, let's see if Du Xinzhi and his wife really sued the court one day and asked Guo Wei to support them, can they be legally supported?
I. Did Du Xinzhi and Guo Wei form an adoption relationship?
We know that whether it is the previous Adoption Law, the Marriage Law or the current Civil Code, the legal relationship of rights and obligations between adoptive parents and children is the same as that of biological parents and children, that is, the adoptive parents have the obligation to support the minor adopted children, and the adult adoptive children have the obligation to support the elderly adoptive parents. Similarly, adoptive parents and children have the right to inherit from each other.
Specific to the 28-year life misalignment case, if the legal relationship between Du Xinzhi and Guo Wei constitutes an adoption relationship, Guo Wei has a legal obligation to support Du and his wife. Therefore, whether a legal adoption relationship was formed between Mr. and Mrs. Du and Guo Wei was of great significance to determining whether Guo Wei had a legal obligation to support Mr. and Mrs. Du.
So, did Mr. and Mrs. Du and Guo Wei legally form an adoption relationship?
On the Internet and in the folk, people habitually call Du and his wife Guo Wei's adoptive parents, and Xu couples are Yao Ce's adoptive parents, but this is only a folk title, and it is not necessarily recognized by law.
In the history of our country, there has indeed been a de facto adoption relationship, that is, if the adopter and the adoptee meet the statutory conditions for adoption and adoption, and the surrounding relatives, friends, the masses or relevant organizations can also prove that they have lived together for a long time with the relationship between the adoptive parents and children, although they have not gone through the legal adoption procedures, they can also be treated as adoption. However, de facto adoption relationships are now a thing of the past.
Legally, there are several points in time that need to be paid attention to with regard to de facto adoption. Article 15 of the Adoption Law, which was first implemented on April 1, 1992, stipulates that "the adoption of abandoned babies and children who cannot find their birth parents, as well as orphans raised by social welfare institutions, shall be registered with the civil affairs department". There are still cases that have been identified as de facto adoption relationships (Source: Selected Cases of the Shanghai Court in 2015). It was not until Article 15 of the 1999 Revised Adoption Law that it was further clarified that "adoption should be registered with the civil affairs department of the people's government at or above the county level", so after the revision of the Adoption Law in 1999, China formally established registration as a requirement, and before that, there will still be conditional recognition of the factual adoption relationship.
In the 28-year life case, Yao Ce's birth certificate recorded the date of birth on June 15, 1992, and although Guo Wei's birth medical certificate was recorded as May 18, 1995, it is now clear that it was caused by an artificial change of time, and the actual date of birth should also be mid-June 1992. That is, the two were born after the implementation of the Adoption Act in 1992 and before the amendment of the Adoption Act in 1999, and in terms of time, if other conditions are met, it may still constitute a de facto adoption relationship.
However, this case does not conform to the legal characteristics of factual adoption: first, the parties do not meet the substantive conditions of adopters and adopters; secondly, the parties do not express the intention of adoption and adoption; third, the parties are also treated as biological parents and children, not as adoptive parents and children; finally, relatives and the masses completely regard them as biological children, not as adoptive parents' children.
Therefore, in this case, the basis for determining that Mr. and Mrs. Du and Mr. Guo Wei or Mr. and Mrs. Xu formed an adoption or de facto adoption relationship with Yao Ce was not sufficient.
2. If the adoption relationship is not established, does Guo Wei still have the legal obligation to support Du and his wife?
China's laws clearly stipulate that adult children have the legal obligation to support their elderly parents, and also stipulate that adoptive parents and children have the same rights and obligations as their biological parents and children, which means that adult adopted children have the legal obligation to support their adoptive parents for the elderly. However, as mentioned earlier, Guo Wei is neither the biological son of Du nor du, nor is it difficult to determine that the adoption relationship is established.
So, does it mean that Guo Wei has no maintenance obligation to Du and his wife?
This estimate is also controversial. Although it can be concluded that Guo Wei and Du and his wife do not have a natural blood relationship, and also deny that they have a legally fabricated parent-child relationship (adoption), there is still a principle of reciprocity of rights and obligations in China's civil law. From the perspective of equal rights and obligations, although Mr. and Mrs. Du did not give birth to Guo Wei, they raised Guo Wei from an early age, and also paid time, energy, material and emotion, "You raise me to grow up, I send you to grow old" This is not only a simple traditional moral requirement, but also a concrete embodiment of the reciprocity of rights and obligations in law.
Some people may think that Guo Wei and Yao Ce have been exchanged since childhood, and now they have "each looking for their own mother", and naturally they should "raise their own mother", so that they do not owe each other, and it seems natural; others will think that the birth of the baby was held wrong in the hospital, and the hospital should pay for it to make up for the losses caused by the parties. However, maintenance and maintenance is not as simple as a simple material transaction, it also involves specific people and emotions, and it cannot be exchanged like a commodity, and the compensation or compensation of the hospital is not related to the support and maintenance between the parties.
Therefore, if the Du couple really sued Guo Wei for his obligation to provide for support, it is not necessarily impossible to support him in law, and this issue, like other cases in this case, is also unexpected by legislators, and if there is really such a lawsuit, it is also worth paying attention to and discussing.
If there were such a case and you were to come to the referee, who would you support? Discussion is welcome.
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