Section on marriage and family in the Civil Code: values, innovations, applicability

Abstract

On May 28, 2020, at the third session of the National People’s Congress (NPC) of the 13th convocation, the “Civil Code of the People’s Republic of China” (hereinafter referred to as the Civil Code) was considered and adopted. The section “Marriage and family” is the fi fth part of the “Civil Code”, consisting of fi ve chapters, a total of 79 articles, including general provisions, marriage, family relations, divorce and adoption. The value positioning of the section on marriage and family in the Civil Code is refl ected in the general provisions. That is, “marriage and family are protected by law.” “Institutions of freedom of marriage, monogamy and equality between men and women should be introduced in order to protect the legitimate rights and interests of women, minors, the elderly and the disabled.” and “The best family traditions should be established in the family, family virtues should be promoted and the formation of family culture should be appreciated.”
The editing of the Section on “Marriage and Family” in the Civil Code demonstrates the legislative concept of protecting the rights and interests of marriage and family for common citizens, guiding the development of marriage and family, and regulating marriage and family relations. System innovation is refl ected in the following fi ve aspects:
First: The addition of an institute about peers. Article No. 1045 in the Civil Code states: The number of relatives includes spouses, blood relatives and relatives. Spouses, parents, children, brothers and sisters, grandparents, grandparents on the mother’s side, grandchildren and grandchildren are part of close relatives. Spouses, parents, children and other close relatives living together are considered family members.
Secondly: Improving the institution of marriage. That is, the removal and modifi cation of the conditions of the prohibition of marriage: The former provision is excluded — “To suffer from medically recognized diseases for which one should not marry”; To amend the institution of the legal force of marriage: the exclusion and reduction of the established circumstances of the invalidity of marriage and the increase of the established circumstances of the dissolution of marriage; The creation of the institution of marriage assistance: in the conditions of the invalidity or dissolution of marriage, a person who has no fault has the right to sue for damages.
Third: The addition of family relations. Family relations include marital relations, relations between parents and children, and relations between other close relatives. The improvement of the legislation of marital relations is refl ected in the following three aspects: the establishment of the right to daily representation of married couples in family affairs, the criteria for approving the joint debt of the spouses, the right to fi le a claim for the division of the joint property of the spouses in marriage. The improvement of the legislation on the relationship between parents and children is refl ected in two aspects: the defi nition of the institution of confi rmation and denial of parents, and the rules on determining the child’s surname. Fourth: Changing the institution of divorce. This institute continues the main concept of the divorce legislation of the People’s Republic of China — to ensure freedom of divorce and against frivolous divorce; To demonstrate the main goal of assistance in divorce on sexual equality — to protect the rights and interests of divorce and to ensure the interests of women.
The change in this regard includes three aspects: First, the change in the terms of the divorce. The change in the conditions for registering a divorce is refl ected in the defi nition of the sober period of divorce. A change in the conditions of the divorce process, this manifests itself as an addition to the circumstances of the divorce established by law. Secondly, the establishment of a rule on the upbringing of children by divorced parents. Thirdly, the improvement of the institution of assistance in divorce. In this context, we mean expanding the scope of the institute of compensation for contributions to housework, restoring the institute of fi nancial assistance in divorce, improving the application of the institute of compensation for damage in divorce.
Fifth: The addition of the Institute of Adoption. To supplement and improve the conditions of adoption include: expanding the age of the adopted person, clarifying the conditions of the adopted person, optimizing the restrictions on the adoption of children of the opposite sex by persons without spouses, performing the adoption procedure, in the case when establishing an adoption relationship, it is required that the civil affairs departments of the people’s governments at the county level and the highest state bodies conduct an assessment of adoption in accordance with the law.
The “Civil Code” came into force on January 1, 2021. In order to promote the implementation of the “Civil Code”, on December 29, 2020, the Supreme People’s Court published No. 1 explanation “On the application of the Section on Marriage and Family in the Civil Code of the People’s Republic of China”, this explanation is divided into six parts: general provisions, marriage, relations between spouses, relations between parents and children, divorce, appendix, a total of 91 articles, it clarifi ed the circumstances of the application and validity of the Section on “Marriage and Family” in the Civil Code. The entry into force of the Section on "Marriage and Family" in the Civil Code will create a new mentality of creating marriage and family, and provide normative acts and guiding behavior for equal, harmonious and civilized relations between marriage and family.