On May 22, the draft of China's first civil code will be submitted to the Third Session of the 13th National People's Congress for deliberation. The Civil Code is the first piece of legislation named after the Code in New China. After its official introduction, China will enter the code era.
From October 2014, the Fourth Plenary Session of the Eighteenth Central Committee of the Party decided to propose the major legislative task of codifying the civil code. The codification of the civil code lasted 5 years and 7 months. During this period, issues such as whether the legal age for marriage should be lowered and whether non-marital cohabitation should be defined by law have caused heated discussions in all sectors of society.
Dispute 1: Should the legal age of marriage be lowered?
The current marriage law stipulates the age of marriage. Men must not be older than 22 years old, and women must not be older than 20 years old. When the draft of the marriage and family of the Civil Code of the second instance was reviewed in June last year, some members proposed to lower the legal age for marriage.
Committee member Zhang Sujun proposed at that time that the legal age for marriage could be adjusted to 18 years for men and 18 years for women. From 2013 to 2018, the number of marriage registrations in China has decreased year by year for five consecutive years. The direct consequence of this is the decline in the birth population and the increase in aging. "Reducing the age of marriage" cannot directly reverse the trend of a decline in the number of marriages and an increase in aging, but this is a positive adjustment direction.
The opinions of the committee members have attracted the attention of netizens. On June 28 last year, the Beijing News official Weibo launched a polling survey: What do you think of the commissioner's suggestion to lower the marriage age appropriately? The results show that more than 60% of netizens do not agree to lower the legal marriage age.
When the third draft was reviewed in October last year, the legal age for marriage was still the standard of “22 years for men and 20 years for women” and no adjustments were made. The relevant person in charge of the Constitution and Law Committee of the National People's Congress said that the revision of the current legal age of marriage is a major adjustment of the marriage system, and it is advisable to make a decision after full investigation and scientific analysis and evaluation.
Some members once again proposed to reduce the legal age of marriage. Commissioner Chen Fengxiang said that the society is very concerned about the age of marriage prescribed by the Marriage Law, and the voice of lowering the legal age of marriage is also very high. "I looked at the material and suggested that it is still the majority that appropriately lowers the legal age. In fact, this also reflects the voice of society."
Dispute 2: Can non-marital cohabitation enter the law?
During each review of the draft marriage and family, members of the Standing Committee of the National People's Congress have constantly suggested that the Civil Code should make principle provisions for "non-marital cohabitation".
At the second trial in June last year, many members such as Han Xiaowu and Sun Xianzhong all raised the issue of non-marital cohabitation. Han Xiaowu said. Could it be considered in the relevant legislation to face the increasingly complicated status of marriage and family life in today's society, and to properly respond to the social reality's need for law?
On October 18 last year, Zang Tiewei, a spokesman for the Legal Work Committee of the Standing Committee of the National People's Congress, responded to the law of non-marital cohabitation. He said that judging from the current situation, the timing of cohabitation is clearly not yet mature. "As people's concepts change, unmarried cohabitation is accepted by some people in some places, but there is still no consensus in the entire society. If the cohabitation system is legally recognized, it will have a big impact on the current marriage registration system. "
Four days later, on October 22, 2019, when the fourteenth meeting of the 13th National People's Congress Standing Committee reviewed the draft for the third review, members and NPC deputies who attended the meeting proposed that the law should still deal with "non-marital cohabitation" Make a definition.
Committee member Han Mei believes that at present, the phenomenon of non-marital cohabitation is showing a rapid upward trend. With this, disputes have also increased significantly, such as property inheritance problems and children's problems. Urgent legislation is needed to resolve them. The status quo of the increasingly complicated family life should be appropriately responded to in the legislation.
Controversy 3: Does divorce require a "cooling off period"?
The current marriage law stipulates that a divorce will be granted if both parties voluntarily divorce (this is an agreement divorce). If there is only one party to file for divorce, the relevant department may mediate or file a divorce lawsuit directly with the people ’s court.
In response to the above-mentioned divorce agreement, the Marriage and Family Draft has newly established a divorce cooling-off period system, which stipulates that within 30 days from the date when the marriage registration authority receives an application for divorce registration, any party who is unwilling to divorce may withdraw the application to the marriage registration authority.
Since the first review in August 2018, the divorce cooling-off system has been widely discussed in every review.
Some members of the Standing Committee of the National People's Congress and NPC deputies agreed that the cooling-off period for divorce should be extended. Yue Xihuan, a deputy to the National People's Congress who has worked in the community for a long time, said, "Can you delay the divorce process a little longer to avoid regret after the divorce and create an opportunity for family harmony."
Some members and representatives hold different opinions. Li Xia, the deputy of the National People's Congress, believes that there is no need to set a cooling-off period for divorce. "If we want to say a cooling-off period, we think that the cooling-off period in marriage registration is more necessary."
A media once initiated a vote on Weibo "Agreement on the divorce cooling-off period, do you agree with it"? The results show that 95.1% of them opposed. Some netizens believe that the marriage cooling-off period is more beneficial to the stability of the family and society than the divorce cooling-off period. Some netizens suggested that a divorce cooling-off period be set to limit the freedom of divorce.
Some experts and scholars have suggested that a screening mechanism should be set up for the divorce cooling-off period, and not one-size-fits-all. For example, domestic violence and gambling, drug abuse, abuse and other abuses should not be set.
Dispute 4: Should the right to visit between generations be retained?
The current marriage law stipulates that after a divorce, the parent who does not directly raise the child has the right to visit the child, and the other party has the obligation to assist. As for the visit rights of grandparents and grandparents, the law does not make provisions.
In the process of compiling the marriage and family draft, the first-trial draft added the provision of the right to visit in alternate generations. The second-round draft was further revised and perfected as follows: after the parents divorced, the grandparents and grandparents had fulfilled their duty to support their grandchildren and grandchildren, or In the event that one of the parents of the grandchildren and grandchildren dies, the grandchildren and grandchildren may be visited by referring to the relevant regulations applicable to divorced parents to visit the children.
Some people agree that the establishment of the right to visit alternately meets the needs of the ancestors. Others object to the fact that the scope of the right to visit alternately is too large, which can easily lead to conflicts and affect the normal lives of minors and children directly raising children. Others suggested that the law should not give grandparents and grandparents separate visitation rights, and suggested that the alternate visitation rights should be deleted.
Among the disputes, the third-review draft that was reviewed on October 21 last year deleted the provision for the right of visiting in alternate generations. On the same day, Shen Chunyao, deputy chairman of the Constitution and Law Committee of the National People ’s Congress, explained that since there is no consensus on this issue at present, it may be considered not to stipulate temporarily in the Civil Code that grandparents and grandparents exercise the right to visit between generations, such as direct child support One of the parties cannot reach a consensus, and can be resolved through litigation.
However, some members still believe that the "intergenerational visiting right" should be restored. On October 22 last year, when the NPC Standing Committee met to review the third draft, the committee member Xian Tieke said, "Now the divorce rate is very high. After the young people divorce, the old people would like to visit their grandchildren and grandchildren. Visits are not allowed for various reasons. We cannot evade it, and it is a bit simplistic when deleted. "
Xian Tie believes that the inter-generational visit dispute after divorce cannot be left for later litigation resolution, "The Chinese are unwilling to sue and do not want to sue. They think that it is a bad thing to sue. Especially the elderly cannot afford to sue. , Can't afford it. "
Controversy 5: Should euthanasia be coded?
Regarding the right to life, the first review of the draft personality right stipulates that natural persons enjoy the right to life and have the right to maintain their own life safety. The second review draft added the expression "dignity of life", which clearly stipulates that natural persons enjoy the right to life and have the right to maintain their own safety and dignity.
Yang Lixin, a professor at the Renmin University of China Law School, explained that the above provisions mean whether the right to life includes the right to die with dignity. It is generally believed that the right to life does not include the right to decide one ’s own death, but if one does not want to use a knife or intubation to do unnecessary rescues, one wishes to die naturally and with dignity. "It is particularly important.
The right to die in dignity involves euthanasia. China's laws do not make any provision for this.
Some representatives believed that euthanasia should be written into the Civil Code, and the provisions on euthanasia should be added to the “right to life” of the right to life. Li Jie, the National People's Congress representative, said that patients with severe cancer are actually analgesic in the advanced stage, and should have tranquility therapy or palliative therapy, and the ultimate dignity of the person should be protected.
The National People's Congress representative Ma Yide also suggested that euthanasia should be specified in the “right to dignity of life” clause. “People with full civil capacity that cannot be treated and relieved of pain, as defined by medicine, have the right to independently decide to implement euthanasia. The natural person's consent to euthanasia means that it can be revoked or withdrawn at any time. "
Dispute 6: Does the new 24 judicial interpretation still need to be revised?
In the previous review of the draft of the Marriage and Family, a focus question has been running through: who is the unilateral debt borrowing in marriage? How should couples' common debts be determined?
The current marriage law does not specifically stipulate the determination of the couple ’s debt during the existence of the marriage relationship. In 2003, the Supreme Law promulgated the Judicial Interpretation of Marriage Law (2), of which Article 24 has caused great controversy in recent years. In January 2018, the Supreme Law issued the "Article 24 New Judicial Interpretation", amending the previous regulations.
However, when the draft of the marriage and family was first reviewed in August 2018, Article 24 of the new judicial interpretation was not included. A number of committee members proposed at the time that the new judicial interpretation of Article 24 had achieved good results. The content of this relatively successful judicial practice should be included in the Civil Code.
At the second trial in June last year, 24 new judicial interpretations entered the law, which clarified the principle of “co-debt co-signing” between husband and wife debts, which stipulates that: the husband and wife jointly sign the debt or the husband and wife recognise afterwards, etc. The debt owed to the family's daily life needs in the name of an individual during the marriage relationship is a joint debt of the husband and wife.
In the subsequent third and fourth trials, the design of the couple's joint debt was adopted in the design of the second review. However, since the second trial, committee members and the general public have continuously proposed that the 24 new judicial interpretations of the Code still need to be revised.
Someone raised the issue of burden of proof, that is, how to determine "debt for the family's daily needs"? Commissioner Wang Yanmeng suggested that whether the debt is a daily necessity for the family depends on the judge. However, the judge's determination should only be able to be judged on the basis of the evidence provided by the parties, otherwise it is only at the discretion of the judge, and many problems will inevitably arise.
From July to August last year, the second review draft of the marriage and family draft was publicly solicited for comments on the Chinese People's Congress. According to the data from the Legal Work Commission, a total of 67,388 opinions and 814 letters from the masses were received by 35,314 netizens. The opinions mainly focused on clarifying the scope of "family daily needs" and further perfecting the couple's common debt.
Dispute 7: Are the in-laws and daughter-in-law close relatives?
Regarding the scope of close relatives, the current civil law does not make clear provisions. The first draft of the Marriage and Family Draft provides that spouses, parents, children, siblings, grandparents, grandparents, grandchildren, and grandchildren are close relatives. Parents-in-law, parents-in-law, daughter-in-law, and son-in-law who live together are regarded as close relatives.
In this regard, some members believe that the scope of the above close relatives should also be expanded, which is conducive to encouraging mutual friendship and mutual support among natural persons in society. There are also views that if the scope of close relatives is broadened, disputes such as inheritance of property are likely to be triggered. Another representative of the National People's Congress pointed out that the determination of "common life" is more difficult, and it is not appropriate to define whether it is a close relative.
Among the multiple views, the fourth review draft reviewed in December last year adopted the view that “shared life” is difficult to identify, and deleted the expression “in-laws, in-laws, daughters-in-law, and son-in-law living together, regarded as close relatives”. The relevant person in charge of the Legal Work Committee of the Standing Committee of the National People's Congress said that in view of the different opinions, the current draft still limits the scope of close relatives to spouses, parents, children, siblings, grandparents, grandparents, grandchildren, and grandchildren.
However, some members still believed that the expression should be retained. Zhou Jianjun, member of the Agriculture and Rural Committee of the National People's Congress, proposed that the above clauses should not be deleted because it is not easy to determine. "We have gone through the one-child policy for decades, and there are a large number of cases where it is necessary for the daughter-in-law or son-in-law to take care of the in-laws or father-in-law, and it is recommended to further improve the conditions for the determination."
Committee member Xin Chunying also said that "shared life" is indeed not well defined, but it is not appropriate to delete this clause altogether, "the original provisions are still meaningful."
Dispute 8: How to divide the infringement liability of online car rental?
The draft infringement liability has a special chapter on motor vehicle traffic accidents, but no provisions have been made on the infringement liability of car-hailing. During each review, several members suggested that the responsibility of the online car-hailing platform should be included in the special chapter on motor vehicle traffic accidents.
During the second trial, Zhou Guangquan, Wang Yanmeng and other members suggested that the liability for online car-hailing platforms should be increased. "If the illegal cost is not high, it may lead to the platform not paying enough attention. If the platform can be identified as a motor vehicle insurance person, it is the subject of responsibility. If it is not a motor vehicle insurance person, but only provides media services, it should be Take over supervision responsibilities, if there is a fault, it should be jointly and severally liable with the person in charge of the motor vehicle, "Wang Yanmeng said.
During the third trial, Lu Wei, Liu Haixing and other members once again referred to the infringement liability of the car-hailing. "The sharing rules for the responsibility of car-hailing traffic accidents should be considered, including the responsibility of the network platform and the responsibility of the driver, etc.," Lu Wei said. Liu Haixing also proposed to further define the responsibilities of the online car-hailing platform and the driver of the vehicle. "In some specific cases, in addition to the corresponding responsibility of the vehicle driver, the online car-hailing platform is also responsible. Therefore, it is recommended that the online car-hailing platform Joint liability with the vehicle driver ".
As of now, the draft still does not involve the infringement liability of online car-hailing. The relevant person in charge of the Legal Work Committee of the Standing Committee of the National People's Congress responded that car-hailing is a new thing, and there are great differences on how to regulate its responsibility. In a situation where there is a lot of controversy and it is difficult to form a basic consensus, the Civil Code, as the basic law, should not rush to stipulate this issue, otherwise it may cause restrictions on the relevant industries.
Dispute 9: Should personality rights be compiled independently?
In August 2018, the drafts of each subsection of the Civil Code were first submitted for consideration, and the closely watched editor of personality rights made its debut. Prior to this, whether the personality rights were created independently or merged into other branches has caused great discussion in the legal profession.
In 2014, the legislature decided to compile the Civil Code in two steps, that is, first to formulate the general rules of civil law, and then to formulate the property rights, contract, tort liability, marriage and family, inheritance, etc., the personality rights are in the civil law The question of whether or not to compile independently in the classics was raised.
Yang Lixin, a professor at Renmin University of China, said that the focus of the debate is, in the final analysis, a legislative and technical issue. Will it be an independent editor or merged into the general rules, or be included in the tort liability editor?
Some scholars have proposed that the "natural person" part of the civil subject of the General Regulations stipulates the personality rights; some scholars believe that the personality rights should be imitated in the Tort Liability Law following the "German Civil Code"; some scholars claim that the personality rights are the same as other civil rights. It is a type of civil rights. Since property rights, inheritance rights, etc. can all be made into one series, why can't the personality rights be made up independently?
The debate continued until 2017, after the introduction of the Civil Code. The legislature eventually adopted an independent legislative approach.
However, the personality rights series is the fourth part of the draft civil code, and the front is the property right series and the contract version respectively. In the previous review, several members suggested that the personality rights editor should be placed "first" in the first place in each sub-series.
In this regard, the relevant person in charge of the Legal Work Committee of the Standing Committee of the National People's Congress responded that the order of each series has its own logic: the second sub-series of property rights and the third sub-contract both involve property relations; The five-point marriage and family series and the sixth-part succession series are all related to personal relationships; the seventh-part series tort liability series is the last one, which regulates the tort liability issues arising from the infringement of civil rights such as real rights, debts, and personal rights.
The person in charge said that if the position of personality rights is advanced in advance, and the positions of marriage and family editing and inheritance editing remain unchanged, the content related to personal relationships will be in a state of fragmentation. The Civil Code first stipulates the compilation of property rights and contracts, regulates the content of real rights and claims arising from contracts, and then stipulates the marriage and family compilation, which is not only conducive to the understanding and application of the law, but also more logical.
Beijing News reporter Wang Shu