Modern China economics of marriage.Mass migration and openness to global cultural shifts unleashed a sexual revolution that redefined the character of intimate relationships inside and outside of marriage. Revised Marriage Law of 2001 There was no single reaction to the lower barriers to divorce and the freer sexual climate.But regardless of whether individuals embraced the shifts as a positive break from a repressive past or whether they saw social breakdown and moral decay,local courts found it increasingly difficult to rely on the 1980 Marriage Law to adjudicate the financial,property,and custody dis- putes of contemporary family life.In response to both public dissatisfaction and confusion in lower courts,the National People's Congress (NPC)decided to solicit proposals for a new Marriage Law.Two opposing views soon crys- tallized.On one side were those who felt that the 1980 law had been too lib- eral and they proposed more legal oversight of marriages and harsher penalties for adultery.On the other side,were those who advocated further liberalization,such as recognition of same-sex marriage.2 Debate continued over five years with no clear resolution.But faced with the need to adjudicate the ever more complex family disputes,in 2001 the NPC promulgated a revised rather than new Marriage Law (Alford and Shen,2004) In terms of substantive changes,the most noteworthy new provisions were those strengthening individual property rights (Marriage Law of the PRC Revised,2001).3 Articles 18 and 19 defined individual property within marriages and elaborated how prenuptials or other notarized agreements between spouses could designate legally enforceable claims.Henceforth,all property acquired before marriage would be presumed to be individual unless otherwise agreed,as would all items which one spouse deemed for his or her personal use.Article 19 introduced new vocabulary such as gezisuoyou that stressed individual ownership as well as explicit wording to empha- size how agreements to designate separate ownership were binding on both parties.By contrast Article 13 in the original 1980 law had merely com- mented that both spouses had equal rights to manage a couple's jointly owned property夫妻对共同所有的财产有平等的处理权. In addition to detailed specification of individual-property rights,the revised law reinforced the ideal of marriage as a voluntary contract where courts would take action only when one or more parties requested court adju- dication.Or,as summarized by legal scholar Margaret Woo(2003),the 2001 revisions went beyond specifying individual rights to enhancing"litigant's choice'”当事人主意so that henceforth courts would intervene in marital dis-- putes only if at least one party explicitly requested court adjudication.In Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
6 Modern China economics of marriage. Mass migration and openness to global cultural shifts unleashed a sexual revolution that redefined the character of intimate relationships inside and outside of marriage. Revised Marriage Law of 2001 There was no single reaction to the lower barriers to divorce and the freer sexual climate. But regardless of whether individuals embraced the shifts as a positive break from a repressive past or whether they saw social breakdown and moral decay, local courts found it increasingly difficult to rely on the 1980 Marriage Law to adjudicate the financial, property, and custody disputes of contemporary family life. In response to both public dissatisfaction and confusion in lower courts, the National People’s Congress (NPC) decided to solicit proposals for a new Marriage Law. Two opposing views soon crystallized. On one side were those who felt that the 1980 law had been too liberal and they proposed more legal oversight of marriages and harsher penalties for adultery. On the other side, were those who advocated further liberalization, such as recognition of same-sex marriage.2 Debate continued over five years with no clear resolution. But faced with the need to adjudicate the ever more complex family disputes, in 2001 the NPC promulgated a revised rather than new Marriage Law (Alford and Shen, 2004). In terms of substantive changes, the most noteworthy new provisions were those strengthening individual property rights (Marriage Law of the PRC Revised, 2001).3 Articles 18 and 19 defined individual 一方 property within marriages and elaborated how prenuptials or other notarized agreements between spouses could designate legally enforceable claims. Henceforth, all property acquired before marriage would be presumed to be individual unless otherwise agreed, as would all items which one spouse deemed for his or her personal use. Article 19 introduced new vocabulary such as gezisuoyou 各自 所有 that stressed individual ownership as well as explicit wording to emphasize how agreements to designate separate ownership were binding on both parties. By contrast Article 13 in the original 1980 law had merely commented that both spouses had equal rights to manage a couple’s jointly owned property 夫妻对共同所有的财产 有平等的处理权. In addition to detailed specification of individual 一方 property rights, the revised law reinforced the ideal of marriage as a voluntary contract where courts would take action only when one or more parties requested court adjudication. Or, as summarized by legal scholar Margaret Woo (2003), the 2001 revisions went beyond specifying individual rights to enhancing “litigant’s choice” 当事人主意 so that henceforth courts would intervene in marital disputes only if at least one party explicitly requested court adjudication. In Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Davis 7 of all stories 1946-2009 1.6 0.8 0.6 0.4 02 0 oogg°goeg %of stories on divorce %of stories on mamriage Figure I.Discussion of marriage and divorce in People's Daily,1946-2009. Source.Renmin ribao(dianziban),1946-2009,http://biscuit.library.yale.edu/. statute and practice therefore,the Revised Law of 2001 echoed and strength- ened the underlying trend toward ever greater privatization and individual- ization throughout contemporary Chinese society (Kong,2011;Yan,2009, 2011). Without access to inner-party debates,I cannot explain the shifting posi- tions among the national elite toward marriage reform.However,by tracking the frequency with which People's Daily,the official paper of the CCP Central Committee,published stories with“marriage'”or“divorce'”in the title between 1946 and 2009,I can roughly trace the rise and fall in the rela- tive importance of marriage as a central concern among those at the apex of national politics.As we see in Figure 1,coverage peaks in the three years after 1949,drops drastically after 1953,and virtually disappears between 1960 and 1979.It then picks up again after the passage of the 1980 Marriage Law,and continues at levels comparable to the mid-1950s.Based on these trends,it appears that official discourse on marriage and/or divorce main- tained a salience for the post-Mao leadership that had been absent in the high- socialist years of the Great Leap Forward and the Cultural Revolution. I turn now to three Supreme People's Court(SPC)interpretations of the Revised Marriage Law.Through examination of these interpretations one Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Davis 7 statute and practice therefore, the Revised Law of 2001 echoed and strengthened the underlying trend toward ever greater privatization and individualization throughout contemporary Chinese society (Kong, 2011; Yan, 2009, 2011). Without access to inner-party debates, I cannot explain the shifting positions among the national elite toward marriage reform. However, by tracking the frequency with which People’s Daily, the official paper of the CCP Central Committee, published stories with “marriage” or “divorce” in the title between 1946 and 2009, I can roughly trace the rise and fall in the relative importance of marriage as a central concern among those at the apex of national politics. As we see in Figure 1, coverage peaks in the three years after 1949, drops drastically after 1953, and virtually disappears between 1960 and 1979. It then picks up again after the passage of the 1980 Marriage Law, and continues at levels comparable to the mid-1950s. Based on these trends, it appears that official discourse on marriage and/or divorce maintained a salience for the post-Mao leadership that had been absent in the highsocialist years of the Great Leap Forward and the Cultural Revolution. I turn now to three Supreme People’s Court (SPC) interpretations of the Revised Marriage Law. Through examination of these interpretations one 0 0.2 0.4 0.6 0.8 1 1.2 1.4 1.6 % of all stories 1946-2009 % of stories on divorce % of stories on marriage Figure 1. Discussion of marriage and divorce in People’s Daily, 1946–2009. Source. Renmin ribao (dianziban),1946–2009, http://biscuit.library.yale.edu/. Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
8 Modern China observes a"triple turn"by the party-state as it advances the further privatiza- tion of the institution of marriage.First,the court has "turned toward" expanding protection of individual claims to property,a turn clearly in accord with an economy where an ever higher percentage of wealth is privately held. Second,it has "turned away"from surveillance of private life,a turn equally in accord with the state's new endorsement of voluntary contract and the right to privacy.And,finally,by privileging individual claims to private property, the court has also "turned away"from the CCP's long-time advocacy and support for a communal,conjugal property regime.The result is an ever more privatized institution of marriage. Interpreting the Revised Marriage Law of 200I Chinese statutes are often vague.And because lower courts cannot rely on case precedents as in the Anglo-U.S.system,judges who find a statute ambiguous or incomplete first consult their party committee,which may sub- sequently seek guidance from higher courts or party supervising bodies. When a problem is pervasive or challenges persist,the Supreme People's Court will be asked to issue interpretations to guide the lower courts in sub- sequent adjudication(Finder,1993).4 Since passage of the Revised Marriage Law in 2001,the SPC has issued three such interpretations.In addition, because drafts of what later became the third interpretation were circulated on the internet,comparison among drafts identifies issues where CCP elites were uncertain or disagreed as how to instruct lower courts in cases of marital discord. The First and Second Interpretations of the 2001 Revised Marriage Law The SPC issued its first interpretation of the revised law in December 2001 (SPC,2001).In that interpretation,the court focused on defining terms that had been absent in the earlier version of the Marriage Law such as "family violence'”家庭暴力，“adulterous cohabitation”配偶者与他人同居，and “abuse'”虐待and that according to the revised statute established grounds for financial compensation in cases of divorce.Also significant was a provision that courts could not withhold divorce from the party at fault if affection had broken down.By instructing lower courts to differentiate criteria for granting a divorce from those for awarding financial compensation such as bigamy, cohabitating with lovers,abusing children,or abandoning the family,the court simultaneously upheld the principle of monetizing fault and advanced an individual's personal right to leave a marriage that was no longer Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
8 Modern China observes a “triple turn” by the party-state as it advances the further privatization of the institution of marriage. First, the court has “turned toward” expanding protection of individual claims to property, a turn clearly in accord with an economy where an ever higher percentage of wealth is privately held. Second, it has “turned away” from surveillance of private life, a turn equally in accord with the state’s new endorsement of voluntary contract and the right to privacy. And, finally, by privileging individual claims to private property, the court has also “turned away” from the CCP’s long-time advocacy and support for a communal, conjugal property regime. The result is an ever more privatized institution of marriage. Interpreting the Revised Marriage Law of 2001 Chinese statutes are often vague. And because lower courts cannot rely on case precedents as in the Anglo-U.S. system, judges who find a statute ambiguous or incomplete first consult their party committee, which may subsequently seek guidance from higher courts or party supervising bodies. When a problem is pervasive or challenges persist, the Supreme People’s Court will be asked to issue interpretations to guide the lower courts in subsequent adjudication (Finder, 1993).4 Since passage of the Revised Marriage Law in 2001, the SPC has issued three such interpretations. In addition, because drafts of what later became the third interpretation were circulated on the internet, comparison among drafts identifies issues where CCP elites were uncertain or disagreed as how to instruct lower courts in cases of marital discord. The First and Second Interpretations of the 2001 Revised Marriage Law The SPC issued its first interpretation of the revised law in December 2001 (SPC, 2001). In that interpretation, the court focused on defining terms that had been absent in the earlier version of the Marriage Law such as “family violence” 家庭暴力, “adulterous cohabitation” 配偶者与他人同居, and “abuse” 虐待 and that according to the revised statute established grounds for financial compensation in cases of divorce. Also significant was a provision that courts could not withhold divorce from the party at fault if affection had broken down. By instructing lower courts to differentiate criteria for granting a divorce from those for awarding financial compensation such as bigamy, cohabitating with lovers, abusing children, or abandoning the family, the court simultaneously upheld the principle of monetizing fault and advanced an individual’s personal right 人身权 to leave a marriage that was no longer Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Davis 9 emotionally satisfying.In 1989,the SPC(1989)had issued an opinion that opened the door for a person guilty of adultery to apply for divorce and if denied on first petition,the court could not refuse to hear a second petition. Provision 22 of the 2001 interpretation went beyond that earlier opinion by deleting the several conditions for a second petition and guaranteeing that the court must grant,not merely hear,a petition for the divorce from the adulter- ous spouse.Henceforth,it became even clearer that a court could not with- hold a divorce simply because a judge found one party guilty of abuse(SPC, 2001:Provision 22). The second SPC interpretation of the Revised Marriage Law,issued on December 24,2003(SPC,2003),further strengthened the salience of per- sonal rights within the marital relationship.For example,the first provision of this 2003 interpretation explicitly explained that cohabitation only comes into the court's purview when justifying a contested divorce or assigning compensation.Another significant provision in the 2003 interpretation clari- fied the property rights of parents-in-law in regard to their expenditures for wedding gifts or a new conjugal home(SPC,2003:Provision 22).During the socialist era,parents in rural areas exhausted their savings to build homes for their sons.However,because divorce was rare and geographic mobility restricted,parents rarely needed to go to court to recoup their investment in a child's marriage.In cities,where direct costs of marriages were far lower and housing was rented,concern with recouping parental investment was even less pressing(Davis-Friedmann,1983;Whyte and Parish,1984).However as noted,rising real estate prices and accelerating migration have created a situ- ation where both rural and urban parents heavily invest in establishing their children's new households even as geographic mobility may undermine fam- ily and marital solidarity (Davis,2002,2010;Yan,2011).Thus,by 2000 the issue of how to protect parental investments in the purchase of a married child's new residence could not be ignored.In response to this specific issue, the Revised Marriage Law was inadequate and thus Provision 22 of the 2003 interpretation specified that absent other arrangements,parental investments before a marriage should be seen as a gift to their child alone and invest- ments after the marriage would be considered as a gift to the couple. The Third Interpretation of the 2001 Revised Marriage Law In August 2011,the SPC issued its third interpretation of the Revised Marriage Law (SPC,2011).In contrast to the first and second interpreta- tions,this third interpretation directly undermined the latent protections of communal property.Thus,Provision 7 in the third interpretation states that when parents give their child money to purchase"immovable property" Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Davis 9 emotionally satisfying. In 1989, the SPC (1989) had issued an opinion 意见 that opened the door for a person guilty of adultery to apply for divorce and if denied on first petition, the court could not refuse to hear a second petition. Provision 22 of the 2001 interpretation went beyond that earlier opinion by deleting the several conditions for a second petition and guaranteeing that the court must grant, not merely hear, a petition for the divorce from the adulterous spouse. Henceforth, it became even clearer that a court could not withhold a divorce simply because a judge found one party guilty of abuse (SPC, 2001: Provision 22). The second SPC interpretation of the Revised Marriage Law, issued on December 24, 2003 (SPC, 2003), further strengthened the salience of personal rights within the marital relationship. For example, the first provision of this 2003 interpretation explicitly explained that cohabitation only comes into the court’s purview when justifying a contested divorce or assigning compensation. Another significant provision in the 2003 interpretation clarified the property rights of parents-in-law in regard to their expenditures for wedding gifts or a new conjugal home (SPC, 2003: Provision 22). During the socialist era, parents in rural areas exhausted their savings to build homes for their sons. However, because divorce was rare and geographic mobility restricted, parents rarely needed to go to court to recoup their investment in a child’s marriage. In cities, where direct costs of marriages were far lower and housing was rented, concern with recouping parental investment was even less pressing (Davis-Friedmann, 1983; Whyte and Parish, 1984). However as noted, rising real estate prices and accelerating migration have created a situation where both rural and urban parents heavily invest in establishing their children’s new households even as geographic mobility may undermine family and marital solidarity (Davis, 2002, 2010; Yan, 2011). Thus, by 2000 the issue of how to protect parental investments in the purchase of a married child’s new residence could not be ignored. In response to this specific issue, the Revised Marriage Law was inadequate and thus Provision 22 of the 2003 interpretation specified that absent other arrangements, parental investments before a marriage should be seen as a gift 赠与 to their child alone and investments after the marriage would be considered as a gift to the couple. The Third Interpretation of the 2001 Revised Marriage Law In August 2011, the SPC issued its third interpretation of the Revised Marriage Law (SPC, 2011). In contrast to the first and second interpretations, this third interpretation directly undermined the latent protections of communal property. Thus, Provision 7 in the third interpretation states that when parents give their child money to purchase “immovable property” 不 Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014