Mar 2023, Volume 18 Issue 1

  • Select all
  • Research Article
    MA Xinyan

    The educational function of law is to inherently and positively standardize and institutionalize core ideologies and values by directly affecting those ideologies, incorporating the outlook on values, ethics, life and honor and disgrace. The purpose of the Legislative Revision Plan of Integrating the Core Socialist Values into the Construction of Rule of Law, adopted by China’s central government in 2018, is to comprehensively strengthen the educational function of law under the guidance of the socialist core values within the entire socialist legal system, to consolidate a solid socialist ideological foundation, and to improve ideology and ethics across China. As a family is the cell of a society and the first classroom of life, family value is not only at the core of a family but also an essential part of a society. The legal system relating to family property, based on the family property system and spousal inheritance right, can rationally adjust the family property relationship; this system can combine, cultivate and carry forward socialist core values, guide and cultivate ethics, and promote family values, family culture and family traditions. Moreover, it can educate people to formulate an appropriate outlook on life, values and money and sense of honor. Today, the legal system of family property, such as the joint possession of marital incomes and the unlimited right to spousal inheritance, has shown a negative effect on educational function, since it was born during the period of the relative shortage of family property in the past. Therefore, the Civil Code should follow the socialist core values, and update and innovate the family property legal system and thereby provide an effective and efficient path to rectify the hitherto negative effect on educational function of the family property legal system.

  • Research Article
    CHEN Wei, HE Haiyan

    Twenty-four new or revised systems or rules have been incorporated in the Civil Code of the People's Republic of China for the purpose of strengthening the State's protection of marriage and family, promoting development of family civilization, and respecting the autonomy of the parties to marriage and family. Furthermore, they are designed for advancing equal marriage and family status, implementing the principle for the best interests of children, and protecting the rights and interests of the weak in marriage and family. In the Marriage and Family Section of the Civil Code, the Chapter 1 “General” has got the new principle of the State protecting marriage and family, new advisory rule for promoting development of marriage and family civilization, and new principle for protecting the best interest of adoptees. Moreover, it has defined the types of relatives, close relatives and family members. In the Chapter 2 “Marriage,” the lawful circumstances for prohibiting marriage and for invalidating marriage are reduced, the scheme of revoking a marriage is revised and supplemented; the obligation of telling the truth about major diseases, and the right for the innocent party to claim damages for an invalid or revoked marriage, are added. In the Chapter 3 “Family Relations,” the rules of husband and wife’s family agency right and its restriction, the rules of marital common debt determination, the rules of marital common property split, and the rule of litigation for the confirmation and denial of parent-child relationship, are added; in the Chapter 4 “Divorce,” the pre-divorce cooling off period and the time for dissolution of marriage relationship are added, the legal circumstances for divorce in litigation, the rules for dealing with child support during divorce, and the principle of splitting the common property of divorced couples are supplemented, the applicable conditions of divorce financial compensation and divorce financial assistance are modified, and the legal circumstances for divorce damage compensation is increased; in the Chapter 5 “Adoption,” the age of adoptees and the number of adopted children are relaxed, the conditions of adopters are revised, and the adoption evaluation rules are added.

  • Research Article
    WANG Yi, BAO Dingyurui

    In dealing with the problem of determining whether a debt should be a marital community debt and how such a debt should be collected, judges may have different value orientations regarding the tradeoff between the protection of marriage and family and the protection of the creditors, which needs to be studied based on empirical evidence. After the Judicial Interpretations [2018] No. 2 (Fa Shi [2018] No. 2) was enacted, we analyzed 863 judgments and motions of the Supreme People’s Court of the People’s Republic of China (PRC) and the high people’s courts, and found that under the framework of existing normative regime, judges can still reach different value judgments based on different interpretative techniques. Judges differed in interpreting the terms of “common intent,” “family daily needs,” “common livelihood,” and “joint production and operation,” and they applied various debt collection rules. These facts indicate that sometimes judges have a complex value balancing process in marginal cases, and they have made different value judgment through extending or confining debt determination rules or debt collection rules. In some other cases, the different application of rules indicate that judges have interpreted those rules in a wrong way. By studying the judges’ existing value orientations and how judges made their decisions, we can evaluate whether existing rules for determining and collecting marital community debts have balanced conflicting values properly, and such facts can also build further consensus for the development of rules.

  • Research Article
    ZHANG Li

    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.

  • Research Article
    WANG Lei

    “Development of family civilization” has joined legislative language system from policy language and ethical language, and has become the basic value orientation of the Marriage and Family Section of Civil Code of the People’s Republic of China (hereinafter referred to as “the Civil Code”). We need to specify significance and jurisprudence of family civilization, and make family civilization harmonious with the basic principles (basic value orientations) of Marriage and Family Section and Inheritance Section. The significance of family civilization in the new era should be taken to include equality, respect, loyalty and unity, as is specified through the legal rules of marriage and family. Development of family civilization does not challenge freedom, but overcomes the defects of individualism in the identity community so as to fully realize the liberal and all-round development of each family member. By integrating family civilization with the basic value orientation of its Marriage and Family Section, the Civil Code has demonstrated a basic position of valuing “family” and of “coordinating the relationship between individual and family.” Moreover, it has revealed the basic attitude of Chinese people towards marital relationship and even towards marriage and family: Marriage and family provide a warm harbor of ethical love with legal significance, a weal-and-woe-sharing community of affection and property wherein family members, husband and wife in particular, focus on overall coordination. It is a closeknit group of equality, harmony, solidarity, like-mindedness, mutual respect and care for the elderly and for the young, and of trust-worthy team.

  • Research Article
    WU Zhicheng

    Traditionally, the Common Law System exercises a legal separation of marital property regime between husband and wife; this regime still has interpretation theory value for functional comparison to that of China. The husband-wife personality integration in the early days of the Common Law System goes back to the original agency of necessity similar to that of the daily family agency of the Civil Law System; the aim was to strengthen marital coherence rather than protect creditors. The “daily family needs” should be identified without excluding the husband-and-wife separation period, and be based on the consumption level during the time that a couple have lived together. The current mainstream mode of the Common Law System starts from the “Consensual Approach” under the legal regime of separation of property between husband and wife, and limits the “Purpose Theory” to cases of insufficient consensual evidence. Moreover, this mainstream mode is supplemented by the “Presumption Theory” that only exists as a method of proof, and is similar to the current Chinese position of co-debt and co-signing. When a nondebtor consents a debtor to borrow money in the name of husband and wife, this consent can be used as a yardstick to determine their marital community debt and to identify the nature of various debts in the context of marital community debt.