Recently, because the minor daughter ordered a "doll kiss", the news that a pair of parents in Sichuan received the "Order to Accept family education guidance order" issued by the court has aroused widespread concern, and they did not expect that the phenomenon of arranged marriages for minors still exists in 2021. The thing is this: Liu heard that Lei X and Qiu X of the same village and Qiu X's daughter Qiu X A stayed at home after graduating from junior high school, considering that his son Zhang X was not yet in love, so he asked the villager Ke X of the same village to go to Lei X's house to talk about the media, and then the parents of both sides began to discuss relatives for the two. In January 2020, after receiving a dowry of 80,000 yuan from Zhang, Lei entered into a marriage contract for the two in July of that year. After That, Zhang took Qiu out to work, and in July 2021, Zhang and Qiu (minor) decided to separate due to personality incompatibility, and Zhang sent Qiu back to his parents' home, but the two parties did not reach an agreement on the return of the dowry and sued the court, and after the court heard the case, after presiding over the mediation, the defendant reached an agreement between the plaintiff and the defendant, and the defendant voluntarily returned the dowry to the plaintiff.
In view of the fact that the parents of both parties violated the provisions of Article 17 of the Law of the People's Republic of China on the Protection of Minors and entered into a marriage contract for minors, which seriously violated the physical and mental health of minors, the judge undertaking the case reprimanded Qiu xxx and Lei xxx, and issued a "Order to Accept Family Education Guidance Order" to them, which is also the first "Order to Accept Family Education Guidance Order" in Sichuan Province. This seems to be a dowry return dispute case, but it reflects a series of legal issues behind it.
First, the question of whether it is legal for parents to enter into marriage contracts for minor children: Article 17 of China's Law on the Protection of Minors stipulates: "Parents or other guardians shall not carry out the following acts: ... (9) Allowing or forcing minors to marry or enter into marriage contracts for minors", expressly prohibiting parents from engaging minors. Even minors cannot marry immediately after they reach adulthood, and in our country, men who have reached the age of 22 and women who have reached the age of 20 can only get married. The Law on the Protection of Minors also clarifies that where parents or other guardians do not perform guardianship duties or infringe upon the lawful rights and interests of minors who are wards, they shall bear responsibility in accordance with law. It can be seen that in this case, the Chinese parents entered into a marriage contract for a minor, which is an illegal act and seriously infringes on the legitimate rights and interests of minors. Moreover, the Civil Code clearly stipulates that China implements the freedom of marriage to prohibit arranged marriage, buying and selling marriages and other acts that interfere with the freedom of marriage, and prohibits the use of marriage to obtain property, which can be given corresponding legal sanctions depending on the seriousness of the circumstances, and the dowry promises, marriage contracts and cohabitation acts in them are not recognized and protected by law.
Second, the question of whether the dowry should be returned in this case: After the mediation of the court in this case, the Qiu family voluntarily returned Zhang's dowry. So let's take a look at whether the Qiu family in this case needs to return the dowry to Zhang if the court mediation is unsuccessful and needs to be judged. According to the first paragraph of Article 5 of the Interpretation of the Supreme People's Court on the Application of the < of the Civil Code of the People's Republic of China > Marriage and Family (I) (hereinafter referred to as "Interpretation I"), "where a party requests the return of a dowry paid in accordance with custom, the people's court shall support it if it is found that it falls under the following circumstances: (1) the parties have not gone through the formalities for marriage registration; (2) the parties have gone through the formalities for marriage registration but have not lived together; and (3) where the payment before marriage has caused difficulties in the life of the payer." In this case, because Qiu was a minor and had not yet reached the legal age of marriage, the two parties did not register their marriage, which met the second item of the first paragraph of "Interpretation 1", so the court should support Qiu's family in returning the dowry to Zhang, but would deduct the dowry money spent during the cohabitation period between the two parties as appropriate.
Third, in this case, whether the sexual acts of Zhang X and the minor girl Qiu X constitute the crime of rape: Article 236 of the Criminal Law of the People's Republic of China stipulates: "Whoever rapes a woman by violence, coercion or other means shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years." Whoever rapes a minor girl under the age of fourteen shall be punished heavily on the basis of rape. "Because the news does not disclose the ages of Qiu and Zhang, if Zhang has reached the age of 16 when the two parties first have sex (China's 16 years of age or older should bear criminal responsibility for committing a crime) and Qiu is not yet 14 years old, then regardless of whether Qiu voluntarily has sex with Zhang, Zhang constitutes rape and must be given a heavier punishment within the statutory sentence. If Zhang is under the age of 16 or Qiu is over 14 years old and both parties are voluntary, then Zhang does not constitute rape.
Written in the end, as the guardian of minors, the parents of girls should take responsibility, make up for the lack of family guardianship in time, and support the "umbrella" for children to grow, rather than going farther and farther on the wrong road.
(Author Zhang Ting, Trainee Lawyer)