Typical Case (4) 丨 Take into account legal and human feelings, and protect the rights of the deceased's close relatives

Editor's Note

In order to carry forward and practice the core socialist values, give full play to the guiding, standardizing, prevention and education functions of typical cases, clarify the rules of social behavior through typical cases, and lead social trends, the Beijing Municipal High People's Court will successively release five batches of typical cases that are related to the daily life of the people and have a leading role in social customs.

This batch of cases mainly focuses on the issue of "protection of the rights of the deceased's close relatives", analyzes and explains the "right to bury", "the right to memorial" and other related rights and obligations of the deceased's close relatives, responds to the concerns of the people, and carries forward China's excellent traditional culture.

Respect customs and customs

Guaranteeing the "right to burial" of the deceased's close relatives

Feng Mou 1 v. Feng Mou2, the third person Beijing Chaoyang Cemetery

Feng Mou3 and Feng Mou 4 general personality rights dispute case

Basic facts of the case

Mr. Feng and Mr. Cheng have four children, namely Feng X 2, Feng X 1, Feng X 3 and Feng X 4. In 2004, Cheng died, and Feng Mou2, as the eldest son, signed the "Beijing Municipal Ashes Placement Facility Lease Contract" with Chaoyang Cemetery, agreeing that Feng Mou2 would lease a double-cave tomb of a certain row of a certain row of Chaoyang Cemetery in Beijing to Chaoyang Cemetery, and bury Cheng in it. After the death and cremation of Feng X in 2016, Feng X 1 requested that Feng X be buried in the above tomb, and Chaoyang Cemetery said that it was necessary to obtain the consent of Feng X 2 on the grounds that the subject of the lease contract was Feng X2, but Feng X 2 refused to cooperate with Feng X 2 due to economic entanglements with Feng X 1 and Feng X.

Plaintiff Feng X1 requested that Chaoyang Cemetery and Feng X2 cooperate to bury Feng X's ashes in the above-mentioned tomb; defendant Feng X 2 defended that there were economic entanglements between the two parties to be resolved and their parents' estates were divided before agreeing to cooperate in handling the burial matters; the third party, Chaoyang Cemetery, said that if the court decided to assist in handling the burial matters, it could be enforced accordingly, but because the contract counterpart Feng X2 did not agree, it could not cooperate with Feng X 1 on its own; the third party, Feng X 3, agreed with Feng X2's defense opinion; the third person, Feng X 4, said, Agree to Feng Mou1's litigation claims.

The result of the referee

After trial, the Chaoyang District People's Court of Beijing Municipality held that, according to Article 10 of the General Provisions of the Civil Law of the People's Republic of China, China's current laws do not clearly stipulate the rights and interests of burial, and disputes involved in the case should be handled in accordance with custom. From the perspective of china's traditional customs, the legitimacy of burial has deep ethical and moral roots.

The reasonable and appropriate burial of the deceased is a generally recognized habit of fulfilling the wishes of the deceased before death and sending condolences to close relatives. From the perspective of China's social customs and habits, the burial of the deceased is generally completed by close relatives, including the choice of burial method, burial location, arrangement of ceremonies, burial of ashes, etc.; the time is usually timely and timely burial is appropriate, and it is not appropriate to delay too long.

If there is a dispute between close relatives about burial matters, if the deceased has a clear will before his death, it shall be arranged according to his will; if the deceased has no explicit will before his death, it shall be arranged according to the general customs and customs of the deceased's area; however, the above arrangements shall not violate good customs and public order. In this case, the child purchased a double-cave cemetery for his parents, and there is no evidence that the deceased objected to this arrangement before his death, and the deceased should be buried in a timely manner according to this arrangement. The delay in burying the father's ashes due to property entanglements among children violates the children's obligation to their parents to bury them, and is also contrary to general social morality. According to article 10 of the General Provisions of the Civil Law of the People's Republic of China, the defendant Feng X2 and the third party, Beijing Chaoyang Cemetery, assisted plaintiff Feng X1 to place Feng X's ashes in Tomb No. 9 of a row in a certain district of Chaoyang Cemetery in Beijing within seven days after this judgment took effect, and the burial expenses were borne by plaintiff Feng X 1.

Typical

From the perspective of China's traditional customs and habits, burial rights and interests include three interests: one is the deceased's expectation and psychological tranquility that he can be buried after death; the second is the personality interest that the living can properly arrange the burial of the deceased with filial piety; and the third is the social public interest of maintaining a humanistic society and ensuring a harmonious and stable order. As the Book of Rites and Sacrifices says, "There are three ways to do filial piety: to be born is to be nurtured, to be lost if not, and to be sacrificed after death." Raising is to look at its obedience, mourning is to look at its mourning, and sacrifice is to look at its respect and time. "Burial" means "funeral", which refers to matters related to the funeral of the deceased; sacrifice is "sacrifice", which refers to the worship of ancestors by the living. Burial involves the determination of the funeral plan, including pre-burial, burial and post-burial matters, such as the right to keep the deceased's body or ashes before burial, the specific time, place and method of burial, and the integrity of the tomb and tombstone after burial. When multiple schemes exist, screening, sorting and selection are required to determine the only burial protocol, which also includes the deceased's expectations of how to be buried.

For the protection of burial rights and interests, the person exercising the right is the close relative of the deceased, and the content of the right is to determine the burial plan: first consider the deceased's will, the deceased should consult together to determine when there is no special arrangement, if it is impossible to negotiate, it should be buried in the most conducive way to the memorial, and the plan should not violate the relevant laws and regulations and policy norms as the bottom line, and not violate public order and good customs as the framework boundary.

Here, the following points need to be noted:

The first is the interpretation of funeral laws and policy norms as the bottom line. The social welfare upheld by the right to burial lies not only in the social stability and order in which everyone can get what they want, but also in the rational allocation of the limited resources of society. In order to balance the relationship between individual funeral wishes and public administration, and to ensure the orderly conduct of funeral affairs for the whole people, the State Council has promulgated the "Funeral Management Regulations", so that litigation claims on funeral matters should not violate the "Funeral Management Regulations" and related interpretations.

The second is an interpretation that takes public order and good customs as the boundary. According to article 10 of the General Provisions of the Civil Code, the application of customary handling of civil disputes should be bounded by public order and good customs, and in disputes over burial rights, the good customs that need to be observed in particular should include, in addition to local customs, burial matters that must not infringe on the interests of others, such as the issue of adjacent relations between the cemeteries of neighbors.

Third, there are several ways to determine the deceased's will: the deceased has left written materials to clearly explain the arrangement plan for the aftermath or the plan determined by the person responsible for the aftermath; the deceased verbally mentions how he wishes to handle the aftermath; it is sufficient to infer from the deceased's pre-life behavior, and there is no contrary evidence that the deceased has other meanings.

Fourth, joint consultation refers to equal consultation between close relatives in the same order, and when there are relatives in the first place, the agreement formed by the relatives in the priority order shall prevail. Specific orders are: (1) spouse; (2) parents, children; (3) siblings, grandparents, maternal grandparents, grandchildren and grandchildren. Spouses have deeper emotional interests in the body or ashes of the deceased, and there is a tradition of husband and wife burial in China, how to determine the funeral matters is also related to the handling of the spouse's affairs, so it is the first priority.

Fifth, when determining the most conducive plan for memorialization, we should comprehensively consider the amount of costs of different burial plans and how to bear them, whether the burial address is convenient for the right holders to make memorials, and whether the burial activities minimize the impact of the surrounding natural environment and social environment, and under the premise of balancing the rights and interests of all parties, combined with all the plans advocated by the right holder, we should select the best to determine how to bury the deceased.

Take into account both jurisprudence and human feelings

Guaranteeing the "Right of Sacrifice" of the Close Relatives of the Deceased

Wang Jia v. Chen Yi personality rights dispute case

The plaintiff is the father of Wang Bing, and the defendant is the husband of Wang Bing. Wang Bing died on October 11, 2016, his body was cremated on October 13, 2016, and his ashes were deposited at the Babaoshan Funeral Home in Beijing. On October 16, 2016, the defendant took away Wang Bing's ashes and placed them in a certain compartment on the floor of the Laoshan Columbarium.

When the ashes were retrieved, the defendant did not inform the plaintiff and the plaintiff was not present. On November 28, 2016, the defendant informed the plaintiff, where Wang Bing's ashes were stored. It was also investigated that the plaintiff had funded the production of a portrait of Wang Bing, which is now retained by the defendant. The plaintiff demanded the return of Wang Bing's ashes and hoped to be buried in peace. The defendant claimed that it had properly placed Wang Bing's ashes and therefore did not agree with the plaintiff's litigation claim.

The plaintiff submitted a notice, courier note and several copies of photos of Wang Bin, an outsider in the case, the main content of which was to inquire where the defendant stored Wang Bing's ashes, and the family could not pay tribute because they did not know where the ashes were stored, resulting in serious mental damage. The defendant submitted the WeChat and SMS records, funeral expense bills, outpatient medical records and charging bills between him and Wang Bing, proving that the divorce was initiated by Wang Bing, that he had paid funeral expenses for handling Wang Bing's funeral matters, and that Wang Bing's ashes had been properly placed. The plaintiff claimed that Wang Bing had left an oral will to arrange for the storage of the ashes, but the defendant did not approve of it.

After trial, the Chaoyang District People's Court of Beijing Municipality held that there were two main focuses of the trial of this case: first, how to determine the main body of the management of the ashes and arrange for the disposal of the ashes in the absence of an agreement on the placement of Wang Bing's ashes by the original defendant; second, whether the defendant constituted an obstruction to the plaintiff's exercise of the right to memorial and whether it should bear the liability for compensation.

Regarding the section on the management of ashes and the arrangement of disposal matters, the court held that: ashes are specific personality objects obtained after the death of natural persons after cremation, objects of tribute, mourning and mourning for relatives, condensing the emotional factors of relatives of the deceased, and having rich personality symbolic significance and ethical color. Matters concerning the time, place, and form of placement of ashes should first be resolved through communication, consultation, and mediation on the basis of taking care of the feelings of the relatives of all parties.

When the relatives of the deceased cannot agree on the placement of ashes, the disposition should be carried out in the following order:

First, in accordance with the principle of respecting the deceased's last wishes, properly place the ashes of the deceased in accordance with the deceased's will or entrustment.

Second, the ashes manager shall be determined according to the degree of closeness and blood relationship with the deceased, and the ashes manager shall decide the disposal method of the ashes. Whereas, the relationship between husband and wife formed by marriage is the most basic relationship in society and the cornerstone of the existence of the family. The husband and wife register for marriage and establish a family, forming a relatively independent living unit, the relationship between the two parties is the closest, and the ashes of the deceased have the greatest impact on the spiritual interests of the spouse. Based on the principle of public order and good customs, and taking into account the factors of blood and the degree of close ties, the spouse should be the first subject of ashes management, followed by parents and children, and finally other close relatives such as siblings, grandparents, and maternal grandparents.

Third, if the administrator of the ashes in the first place fails to fulfill his management obligations or is improperly managed, other close relatives have the right to request correction. In this case, after Wang Bing's death, the defendant placed his ashes in the Laoshan Columbarium, and the burial method complied with the principles of public order and good customs and relevant regulations. The defendant had informed the plaintiff of the place where the ashes were stored, and this did not affect the plaintiff's memorial service, so this court did not support the plaintiff's claim that Wang Bing's ashes should be returned and that the memorial service should not be obstructed.

As to whether the defendant constituted an obstruction to the plaintiff's exercise of the right to sacrifice and whether it should bear the liability for compensation, the court held that the right of sacrifice was the right of close relatives to make sacrifices to the deceased. After the death of a natural person, his relatives participating in the funeral ceremony of the deceased belongs to the traditional custom of our country, and it is also a way for relatives to express their mourning and remembrance. Relatives shall, in the spirit of mutual understanding, mutual accommodation and mutual respect, lawfully, reasonably and reasonably exercise the right of remembrance. In this case, the plaintiff, as Wang Bing's father, and the defendant, as Wang Bing's spouse, both enjoyed the right to remember and recall Wang Bing equally after Wang Bing's death, and both parties should respect this right enjoyed by the other party in exercising the right of memorial service. Although it is in accordance with the relevant regulations and traditional requirements for the defendant to bury the ashes in the columbarium, the plaintiff who enjoys the same rights should be notified in advance when burying, so as to facilitate the plaintiff's memorial.

The defendant's act of removing the ashes without informing the plaintiff did infringe the plaintiff's right to pay homage to a certain extent and caused certain harm to his feelings. Therefore, the court supported the plaintiff's claim for compensation for moral damage, but the amount of its claim was too high, and the court adjusted it as appropriate in light of the defendant's infringement facts, circumstances and extent.

The Chaoyang District People's Court of Beijing Municipality, in accordance with the provisions of Articles 5 and 7 of the General Principles of the Civil Law of the People's Republic of China and Articles 2, 15 and 22 of the Tort Liability Law of the People's Republic of China, rendered the following judgments: 1. Chen Yi returned the remains of Wang Bing to plaintiff Wang A within seven days after this judgment took effect; 2. Chen Yi paid plaintiff Wang Jia 20,000 yuan in consolation money for mental damage within seven days after this judgment took effect; and 3. Rejected Wang Jia's other litigation claims.

Wang Jia appealed against the first-instance judgment and later withdrew his appeal. In accordance with Article 173 of the Civil Procedure Law of the People's Republic of China, the Third Intermediate People's Court of Beijing Municipality ruled as follows: The Ruling Allowed Wang Jia to withdraw his appeal. Both parties shall be executed in accordance with the judgment of the Court of First Instance.

The right of remembrance is the right of citizens to express remembrance and admiration for the deceased on the basis of kinship and other relationships. In practice, the focus of disputes in many cases of disputes over the right of memorial is who has the right to exercise the right of memoriality, which is essentially a dispute over the exercise of the right of memoriality.

The judgment in this case explored the subject of the right to memorial and the exercise of the right to sacrifice, and confirmed that when exercising the right of memoriality, consultation between relatives should be the first choice, and when consultation fails, the following rules can be applied according to the provisions of the Inheritance Law on the order of inheritance, according to the degree of closeness with the deceased: the first order, spouse, parents and children; the second order: grandparents, maternal grandparents, siblings, grandchildren, grandchildren; third order: the person who formed a de facto adoption relationship with the deceased before his death, the deceased's immediate non-close relatives, Spouse of the deceased's children and parents of the deceased's spouse. In view of the identity characteristics of the right of memorial, the content of the right of memorial is first enjoyed by the first right holder, and in the case of respecting the will of the deceased, the parties shall negotiate the manner and content of the exercise of the right. If the spouse, parents, children, etc. commit abandonment, abuse or seriously fail to fulfill the duty of care before the deceased's death, the exercise of the right of reparation may be restricted. Of course, in order to prevent the improper exercise of rights, it is necessary to set up a remedy, that is, when the right holder improperly exercises the right in the first place, others have the right to demand correction or restriction of their rights.

This case reveals the general rules on the subject of rights and the exercise of the right in order in the dispute over the right of memorial, which fills the gap in the law and has good exemplary and educational significance. At the same time, the right to memorial is discussed under the framework of public order and good customs, and the protection of the right of memorial service by quoting customary law, basic principles of law, general provisions, etc., also provides a reference for the protection of other similar rights.