Normative Effect of Fine Family Values Clauses in the Marriage and Family Section of China's Civil Code

Abstract

The fine family values incorporated into China’s Civil Code can effectively resolve the contradiction between the Marriage and Family Law’s specific socialization requirements and the relatively insufficient socialization they present after they have been incorporated into the Civil Code of the People’s Republic of China. The fine family values clauses can reflect the ethics of Marriage and Family Law by introducing the family’s subject position in identity law, by specifying the scope and source of public order for judging behavior legitimacy in family relations, and by checking and balancing the tendency of turning Marriage and Family Law into Property Law. The clauses’ normative effect includes the organizational effect aimed at regulating family power, social power and state power, and the advisory effect for promoting moral education. However, its core lies in its behavior normative effect for guiding the judicial process and its adjudicative normative effect. In terms of specific application, we should focus on realizing the normative function of the fine family values clauses. This function includes proving the relationship between a guardian’s “lack of control and education” and external damage caused by family members, balancing family stability and personal freedom value, limiting seeking improper property interests by means of identity behavior and creating independent legal interests.

Keywords

fine family value / function of law / normative effect / implication of legal interpretation

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