How will the civil Code, which comes into effect on January 1, 2021, change people’s lives? This is a hot social issue recently. On December 30, 2020, the Supreme People’s Court held a press conference to complete the review of judicial interpretations and the first batch of judicial interpretations on the implementation of the Civil Code.
He Rong, vice President of the Supreme People’s Court, said the civil code is a code name, since the founding of the first to the landmark law, the law of the People’s Republic of China civil code is performed, in this process, the method will be to protect civil rights as a starting point, adhere to correctly apply the civil code, fully clean up the judicial interpretation and relevant regulatory documents, focus on a group of high social awareness and practice are in urgent need of the judicial interpretation of revision work.
He said the Supreme People’s Court has sorted out 591 judicial interpretations and relevant normative documents. Among them, 364 are consistent with the provisions of the civil Code, which have not been modified and continue to be applied; In the second case, 111 pieces of the standard civil Code shall be amended in terms of names and some provisions, which shall be implemented as of January 1, 2021 after being amended and promulgated. In the third case, 116 judicial interpretations and relevant normative documents have been annulled and become invalid on January 1, 2021.
At the same time, the press conference gave detailed explanations on 7 newly formulated judicial interpretations, among which judicial interpretations concerning marriage and family, inheritance, property rights, labor disputes and other aspects have attracted much attention and aroused extensive discussion after the press conference.
To this end, China news weekly interview was involved in the civil code of weaving chapter discuss the law school of renmin university of China and relevant judicial explanation, associate professor, civil and commercial legal science research center, renmin university of China, deputy researcher Xiong Bing, the civil code of marriage and family, inheritance, personality right in professional as well as the current hot issue of public concern.
Marriage and Family:
There is a cover-up fraud, marriage revocation is still unmarried
China News Weekly: On the basis of the explicit provisions on domestic violence in the Anti-Domestic Violence Law, the civil code defines persistent and frequent domestic violence as abuse. What is the practical significance of this provision?
Xiong Prowon: The civil Code makes a clear distinction between domestic violence and abuse in several legal texts, including the marriage and family code and the inheritance code. The legal consequences of domestic violence and abuse are different on different issues. In the case of divorce, both domestic violence and abuse constitute substantial grounds for divorce, and the innocent party can claim damages.
But in an adoptive relationship, abuse has a separate meaning. The law clearly stipulates that if the adopter fails to perform the duty of rearing him or her and maltreats and abandones him or her, the adopter may ask for the termination of the adoptive relationship. Where an adopted child maltreats and abandons his adoptive parents when he becomes an adult, the adoptive parents may require him to return the corresponding maintenance payments. In addition, if the maltreatment of the decedent is serious, he will be disinherited. In these respects, the law makes a clear distinction between domestic violence and abuse.
The judicial interpretation of the civil Code stipulates that the relationship between domestic violence and maltreatment is consistent and regular domestic violence, which is equivalent to further clarifying and improving domestic violence and providing more rules to follow in judicial practice.
China News Weekly: What are the major changes in terms of marriage and family editing?
Xiong: Revocation of fraud is a big change, which increases the disclosure obligation of major diseases before marriage. If one party suffers from a serious disease, he shall truthfully inform the other party before marriage registration, and the other party who is not so informed may request the people’s court to revoke the marriage. What major diseases should be included in the future remains to be further clarified in legal and judicial cases. In addition to AIDS, sexual dysfunction and other obvious major diseases, whether other types should be included in the future is worth paying attention to. Under the system, if one partner with a serious illness fails to notify the other, the other can ask for the marriage to be annulled. After the annulment, his marital status remains unmarried. This is different from the effect when the other party chooses to request a divorce, and the legal status after divorce is divorce.
China Newsweek: What do you think of the issue of whether the termination of pregnancy infringes on the husband’s reproductive rights?
Xiong Prowan: This is an issue concerning the protection of major personal rights and interests and the respect of individual’s independent will. In order to satisfy one party’s fertility desire, forcing another party to carry out the fertility behavior obviously does not conform to the basic value orientation of respecting and protecting the personal freedom and personality stipulated in the personality right of civil code.
In some past cases, because this rule is not clear, the medical institutions or the parties are unable to make medical decisions in a timely manner and take effective medical measures on major medical decisions, and even lead to the death of pregnant women in some serious cases. In particular, this is a problem when the medical establishment is involved in major surgery or even emergency measures, and couples disagree. Legal clarification of the right of pregnant women to decide on their own births contributes to better respect for and protection of women’s wishes and physical health.
China News Weekly: As for the purchase of house by parents before marriage, it should be regarded as a gift to their children, unless the terms of both parties are clearly stated. What do you think?
Xiong: In principle, the pre-marriage property of two people belongs to their personal property, including the property donated by the parties to the marriage. But in the gift, if one party’s parents clearly express the object of the gift, in principle, the will of the donor should be respected. On the other hand, to some extent, it also requires the donor to make clear his or her intention that the assets purchased before marriage should be regarded as joint property of the couple. This kind of explicit expression may be different from the social concept of acquaintances, but in the disposal of major property, it is not only responsible for their own behavior, but also give others, especially children, a clear expectation. In the gift after marriage, if the donator due to the situation is not clear expression of the donative object, in the interests of the situation at the same time, it is likely to assume the property is the result of both sides of the gift.
This is associated with the current state of the union, the Chinese because of the face is not willing to put the marriage and family of major property disposal intentions clear, premarital have parents don’t want to show that this is for unilateral, not because you’re afraid of marriage, the law but now expressed a clear orientation, namely donative objects, you have to clear your property should have a clear position.
Inherit the editor:
To delete a notary will is preferred
China Newsweek: Are there any new provisions in the civil code on the distribution of inheritance?
Xiong Prowon: In the absence of a will, the law generally adheres to the principle of equal distribution of heirs and presumes that it conforms to the will of the decedent. However, in the absence of a will by the decedent, the greater the support obligations of the heir, the greater the time cost of caring for the elderly. Thus, the law generally presumes that old people would generally prefer to give more to such heirs if they had had the opportunity to make a will. This is not a completely new system, but the judicial interpretation reinforces it and helps to encourage everyone to take care of the elderly better together.
China News Weekly: Have there been any major changes in succession?
Xiong: A notarial will is a big change. The testator made several wills in the past, the contents of which contradict each other, and the last one shall prevail. However, if there is a notarial will in several wills, a notarial will is preferred. A notarial will shall not be revoked or altered by writing, writing, recording or oral will. However, the civil code has deleted the rule of preference of notarial will and directly adopted the rule of taking the last will as the criterion.
This rule change has many advantages. For example, some old people have handled a notarial will before, but later hope to modify the notarial will, but because of many reasons such as the inconvenience of action, it is not convenient to modify and realize their own will. Previously, the simple, rigid rule that a public will should prevail was not conducive to the fulfilment of a successor’s will. For example, the notarial will itself is not unified because of the notarial office, when there are more than one notarial will, it is difficult to determine which notarial will shall prevail.
In addition, the printing of wills is also a big change. The civil code has added the rules of the effectiveness of the printing of wills. The new rules require the printing of the will to be witnessed by two or more witnesses, who sign each page of the will stating the year, month and day. When the law of succession was enacted in 1985, there was not much use for printers, and the way people write is changing so much that there is a lot of debate about the validity of printing wills. The new rule also fills a legislative void.
China Newsweek: What if no one succeeds?
Xiong Prowon: The civil code stipulates that there is no legal heir or will after death, so the property can be distributed to the person who has more support for the decedent. This is also what He Rong said, encouraging everyone to help each other. This is corresponding to the national conditions of China’s aging society. For the elderly with property, we encourage those who have actually done their duty to support the elderly to help them spend their old age in peace, which is a perfect and supplement to the current actual situation.
China News Weekly: How does the civil code explain that parents should not refuse to pay maintenance fees because their children change their surnames?
Xiong Prowan: The civil code stipulates that a natural person has the right to use his or her name. He or she has the right to decide, use, change or authorize others to use his or her name. That is to say, the decision of name and right of use belong to the parties themselves. A common practice dispute is that after two people divorce, the parents of one person living together remarry, possibly changing the children’s names, and the other person refuses to pay maintenance. This is actually a distinction between legal adjustment and moral adjustment, and there’s nothing in the law that says that the right to name is modified in relation to the dependency; In contrast, the emergence and continuation of a nurturing relationship is usually based on the fact of procreation.
China News Weekly: I have noticed that the civil Code has changed the preference for the right to care of minor children from 10 to 8 years old.
Xiong Prowon: It is adjusted with the social and economic development of the whole country and the change of the maturity of minors. The general Provisions of the Civil Law, now the general provisions of the civil Code, adopted in 2017 to align the standard with the revised general Provisions of the Civil Code, which lowered the age of incapacity to eight years from 10 years previously.
Rights of Personality Part:
Increase the responsibility and obligation of dealing with sexual harassment
China News Weekly: It was mentioned in the press conference that some new systems in the civil code, such as sexual harassment, should be defined and dealt with.
Xiong Prowan: This is a legislative highlight in the civil Code. Prior to the civil Code, sexual harassment in a broad sense constituted a general personal tort. However, the legal definition of sexual harassment, especially non-physical harassment, is unclear. In order to strengthen the protection of women, there is a separate article in the personality rights and civil code to stipulate sexual harassment and its legal liability. There are a few highlights:
First, sexual harassment itself has been clearly defined, that is, against the will of others in words, words, images, physical behavior and other ways of sexual harassment of others. In this regard, the victim may, according to law, request the actor to bear civil liability.
The second is to stipulate the duty of prevention and disposal of sexual harassment. The civil Code stipulates that authorities, enterprises, schools and other units should take reasonable measures to prevent, accept complaints, investigate and deal with, and prevent and stop sexual harassment by using their power. This requires institutions to make timely efforts to carry out vocational training and make efforts to manage this movement afterwards. We must not “put a lid on it”. If a unit fails to promptly and properly dispose in order to protect the reputation of the unit, the unit may therefore bear the corresponding legal liability.
China News Weekly: The independent compilation of the right of personality is a highlight of the civil code. How do you understand the compilation of the right of personality?
Xiong Prowan: This reflects the continuous progress of material civilization in our society and the promotion of group spiritual civilization. Today, a typical change in the concept of social rights is that people’s demands for all kinds of rights related to personal freedom and dignity become more and more intense.
Ten years ago, when China enacted the Tort Liability Law, the main issues it addressed were environmental pollution, product liability, medical accidents, traffic accident damage and other issues related to basic subsistence guarantee. Ten years later, China formulated the civil Code, focusing on the protection of personal freedom and personal dignity, such as privacy, personal information, reputation and credit, and other issues related to the improvement of the quality of life. The focus was no longer on the appeal of rights related to basic survival protection, which was solved by previous laws. This is a dynamic reflection of the society when a country’s economy develops to a certain stage.
On the other hand, the rapid development and progress of science and technology in the past two decades not only brought convenience to life, but also brought new dangers to the invasion of personality and privacy. Threats posed by personal information, biological characteristics and genetic technology need to be seriously dealt with, and important institutional arrangements have been made for the compilation of personality rights.
China Newsweek: How to protect the right of personality after it is violated?
Xiong Prowon: For potential acts, ongoing or imminent acts of infringement of the right of personality, the court can apply for a temporary injunction before the court makes an effective judgment on the substantive issues. For example, the privacy of the letter, private photos out, which involves privacy
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