The Re-emergence of Family Law in Post-Mao China:Marriage,Divorce and Reproduction* Michael Palmer This article examines developments in the family law of post-Mao China. The expansion of the legal regime governing Chinese family life during the past 15 years has been extremely rapid and represents an important legal advance,although to some extent the developments are old wine in new bottles-a reconstruction in legislative form of pre-existing adminis- trative.norms already governing family life.In addition,the article necessarily considers a number of significant tensions or contradictions that have become apparent in PRC family law over the past decade or so. At one level the post-Mao growth in the corpus of family law has a fairly clear meaning.The 1950 Marriage Law and the system of family law which it attempted to put into place were important elements in the generation of political support for the new regime.However,in the post-Mao era the rapid codification of family law has been in large part prompted by the leadership's concern to ensure stability,order and continuity in social life.In addition,the family has once more been installed as the basic unit of social life,a position enhanced by the declining social significance of the danwei or unit.The law has therefore been used to reshape the family in order to make it more consistent with the new economic and social orders being created in the era of reform. There is also a concern to strengthen the rights and interests of the socially vulnerable,and this too has influenced certain areas of family law.At the same time,however,it is clear that in several significant respects the new legislation on the family has been very ineffective and failed to produce desired changes in social practice.As a result,the rapidly evolving system of family law sometimes gives the appearance of being out of control-of steadily gaining momentum but not necessarily progressing towards its intended goals so that,in a sense,it provides more rules but not necessarily more law. Embedding the Family in the Law In 1979 marriage and the family in the People's Republic of China (PRC)were in the main governed by only two codes of law':the *I thank the Law in China Under Reform Conference participants for their helpful com- ments on the draft version of this article.Responsibility for any remaining errors is mine alone. 1.The corpus of "family law"in existence at the end of the late 1970s was not,however. confined to these two codes because many regulations and administrative rules produced by ministries,local governments and so on remained unpublished.To some extent,the greatly increased volume of legislation issued during the 1980s and 1990s reflects not only a felt need to provide new rules on marriage and the family but also a major policy decision to make such The China Quarterly,1995 Downloaded from http:/www.cambridge.org/core.Shanghai JiaoTong University,on 15 Oct 2016 at 08:21:12,subject to the Cambridge Core terms of use available at http:/www.cambridge.org/core/terms.http://dx.doi.org/10.1017/50305741000032938
The Re-emergence of Family Law in Post-Mao China: Marriage, Divorce and Reproduction* Michael Palmer This article examines developments in the family law of post-Mao China. The expansion of the legal regime governing Chinese family life during the past 15 years has been extremely rapid and represents an important legal advance, although to some extent the developments are old wine in new bottles - a reconstruction in legislative form of pre-existing administrative norms already governing family life. In addition, the article necessarily considers a number of significant tensions or contradictions that have become apparent in PRC family law over the past decade or so. At one level the post-Mao growth in the corpus of family law has a fairly clear meaning. The 1950 Marriage Law and the system of family law which it attempted to put into place were important elements in the generation of political support for the new regime. However, in the post-Mao era the rapid codification of family law has been in large part prompted by the leadership's concern to ensure stability, order and continuity in social life. In addition, the family has once more been installed as the basic unit of social life, a position enhanced by the declining social significance of the danwei or unit. The law has therefore been used to reshape the family in order to make it more consistent with the new economic and social orders being created in the era of reform. There is also a concern to strengthen the rights and interests of the socially vulnerable, and this too has influenced certain areas of family law. At the same time, however, it is clear that in several significant respects the new legislation on the family has been very ineffective and failed to produce desired changes in social practice. As a result, the rapidly evolving system of family law sometimes gives the appearance of being out of control - of steadily gaining momentum but not necessarily progressing towards its intended goals so that, in a sense, it provides more rules but not necessarily more law. Embedding the Family in the Law In 1979 marriage and the family in the People's Republic of China (PRC) were in the main governed by only two codes of law1 : the *I thank the Law in China Under Reform Conference participants for their helpful comments on the draft version of this article. Responsibility for any remaining errors is mine alone. 1. The corpus of "family law" in existence at the end of the late 1970s was not, however, confined to these two codes because many regulations and administrative rules produced by ministries, local governments and so on remained unpublished. To some extent, the greatly increased volume of legislation issued during the 1980s and 1990s reflects not only a felt need to provide new rules on marriage and the family but also a major policy decision to make such © The China Quarterly, 1995 , available at http:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/S0305741000032938 Downloaded from http:/www.cambridge.org/core. Shanghai JiaoTong University, on 15 Oct 2016 at 08:21:12, subject to the Cambridge Core terms of use
The Re-emergence of Family Law 111 Marriage Law 19502 and the Marriage Registration Regulations 1955.3 A decade or so later various legislative,judicial and administrative developments have altered dramatically the official normative frame- work within which Chinese marriage and family exist.The principal legislative developments governing marriage and family life are easy enough to detect,although they seem to have succeeded in escaping the attention of many social scientists concerned with questions of modern Chinese marriage and family.3 A revised Marriage Laws and reformed Marriage Registration Regulations were introduced in 1980,7 with the latter being replaced by a revamped version in 1986*and then superseded in February 1994 by Regulations for the Administration of Marriage Registration'-having also been strengthened by a Supreme People's Court interpretation in 1989.10 In 1985,a Law of Inheritance was adopted, albeit accompanied by a certain amount of political debate.1 Another controversial area-divorce-was also subject to an important Supreme footnote continued rules publicly available.It is difficult to make precise judgments about these developments, however,if only because a significant quantity of regulation in this and other areas of law is still not available to the ordinary Chinese citizen. 2.Zhonghua Renmin Gongheguo hunyin fa (Marriage Law of the PRC)1980.in Zhongguo falu nianjian bianjibu(Editorial Department of the Law Yearbook of China). Zhongguo falu nianjian 1987 (Law Yearbook of China 1987)(Beijing:Falu chubanshe,1987). pp.168-69. 3.For a discussion and translated text of the 1955 Marriage Registration Regulations see M.van der Valk,"The registration of marriage in Communist China,"Monumenta Serica, Vol.XVI,Nos..1-2(1957),Pp.347-359. 4.By"administrative developments"I refer in particular to the administrative apparatus that has been put in place after the decollectivization of agriculture and,more specifically. to the establishment of administrative structures for such matters as birth planning,marriage registration and so on. 5.The Marriage Law 1980 and the Inheritance Law 1985 are the codes which have attracted the greatest attention.The single-child policy has,of course,given rise to a flood of writing,but surprisingly little attention has been given to the structure and wider significance of the various provincial regulations on birth limitation. 6.Marriage Law of the PRC 1980. 7.Hunyin dengji banfa(Marriage Registration Regulations)1980,in Zhonghua Renmin Gongheguo fagui huibian (Collected Laws and Regulations of the People's Republic of China)(Beijing:Falu chubanshe,1981),pp.70-71. 8.Hunyin dengji banfa (Marriage Registration Regulations)1986,in Zhongguo fali nianjian 1987,pp.283-85. 9.Hunyin dengji guanli tiaoli (Regulations for the Administration of Marriage Registration)1994,Fazhi ribao (Legal System Daily),27 February 1994,p.2. 10.Zhonghua Renmin Gongheguo Zuigao Renmin Fayuan(Supreme People's Court of the PRC)."Guanyu renmin fayuan shenli wei ban jiehun dengji er yi fu-qi mingyi tongju shenghuo anjian de ruogan yijian"("Some Opinions regarding cases tried by people's courts in which couples have lived together as husband and wife without carrying out marriage registration"),in Zhongguo falu nianjian bianjibu,Zhongguo fali nianjian 1990 (Law Yearbook of China 1990)(Beijing:Falu chubanshe,1990).pp.698-99. 11.Zhonghua Renmin Gongheguo jicheng fa (Inheritance Law of the PRC)1985,in Zhongguo falui nianjian 1987,pp.257-279.On the introduction of the Inheritance Law 1985 see Michael Palmer."China's new Inheritance Law:some preliminary observations,"in S. Feuchtwang,A.Hussain and T.Pairault (eds.),Transforming China's Economy in the Eighties,Volume I:The Rural Sector,Welfare and Employment (Boulder,CO:Westview Press.1988),pp.169-197. Downloaded from http:/www.cambridge.org/core.Shanghai JiaoTong University,on 15 Oct 2016 at 08:21:12,subject to the Cambridge Core terms of use available at http:/www.cambridge.org/core/terms.http://dx.doi.org/10.1017/50305741000032938
The Re-emergence of Family Law 111 Marriage Law 19502 and the Marriage Registration Regulations 1955.3 A decade or so later various legislative, judicial and administrative developments4 have altered dramatically the official normative framework within which Chinese marriage and family exist. The principal legislative developments governing marriage and family life are easy enough to detect, although they seem to have succeeded in escaping the attention of many social scientists concerned with questions of modern Chinese marriage and family.5 A revised Marriage Law6 and reformed Marriage Registration Regulations were introduced in 1980,7 with the latter being replaced by a revamped version in 19868 and then superseded in February 1994 by Regulations for the Administration of Marriage Registration9 - having also been strengthened by a Supreme People's Court interpretation in 1989.1(l In 1985, a Law of Inheritance was adopted, albeit accompanied by a certain amount of political debate." Another controversial area - divorce - was also subject to an important Supreme footnote continued rules publicly available. It is difficult to make precise judgments about these developments, however, if only because a significant quantity of regulation in this and other areas of law is still not available to the ordinary Chinese citizen. 2. Zhonghua Renmin Gongheguo hunyin fa (Marriage Law of the PRC) 1980, in Zhongguo falii nianjian bianjibu (Editorial Department of the Law Yearbook of China), Zhongguofalii nianjian 1987 (Law Yearbook of China 1987) (Beijing: Falii chubanshe, 1987), pp. 168-69. 3. For a discussion and translated text of the 1955 Marriage Registration Regulations see M. van der Valk, "The registration of marriage in Communist China," Monumenta Serica, Vol. XVI, Nos. 1-2 (1957), pp. 347-359. 4. By "administrative developments" I refer in particular to the administrative apparatus that has been put in place after the decollectivization of agriculture and, more specifically, to the establishment of administrative structures for such matters as birth planning, marriage registration and so on. 5. The Marriage Law 1980 and the Inheritance Law 1985 are the codes which have attracted the greatest attention. The single-child policy has, of course, given rise to a flood of writing, but surprisingly little attention has been given to the structure and wider significance of the various provincial regulations on birth limitation. 6. Marriage Law of the PRC 1980. 7. Hunyin dengji banfa (Marriage Registration Regulations) 1980, in Zhonghua Renmin Gongheguo fagui huibian (Collected Laws and Regulations of the People's Republic of China) (Beijing: Falii chubanshe, 1981), pp. 70-71. 8. Hunyin dengji banfa (Marriage Registration Regulations) 1986, in Zhongguo falii nianjian 1987, pp. 283-85. 9. Hunyin dengji guanli tiaoli (Regulations for the Administration of Marriage Registration) 1994, Fazhi ribao (Legal System Daily), 27 February 1994, p. 2. 10. Zhonghua Renmin Gongheguo Zuigao Renmin Fayuan (Supreme People's Court of the PRC). "Guanyu renmin fayuan shenli wei ban jiehun dengji er yi fu-qi mingyi tongju shenghuo anjian de ruogan yijian" ("Some Opinions regarding cases tried by people's courts in which couples have lived together as husband and wife without carrying out marriage registration"), in Zhongguo falii nianjian bianjibu, Zhongguo falii nianjian 1990 (Law Yearbook of China 1990) (Beijing: FalU chubanshe, 1990), pp. 698-99. 11. Zhonghua Renmin Gongheguo jicheng fa (Inheritance Law of the PRC) 1985, in Zhongguofalii nianjian 1987, pp. 257-279. On the introduction of the Inheritance Law 1985 see Michael Palmer. "China's new Inheritance Law: some preliminary observations, " in S. Feuchtwang, A. Hussain and T. Pairault (eds.), Transforming China's Economy in the Eighties, Volume I: The Rural Sector, Welfare and Employment (Boulder, CO: Westview Press, 1988), pp. 169-197. , available at http:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/S0305741000032938 Downloaded from http:/www.cambridge.org/core. Shanghai JiaoTong University, on 15 Oct 2016 at 08:21:12, subject to the Cambridge Core terms of use
112 The China Quarterly People's Court interpretation in 1989.2 In 1991 a full code of law for adoption was ushered in,3 as were laws protecting minors14 and codes prohibiting prostitution and the patronizing of prostitutes,15 and the abduction of women and children.16 The Law for the Protection of Women's Rights and Interests7 was finally introduced in 1993,a belated legislative fulfilment of the Party's long-standing promises to combat traditional gender stereotypes and,more specifically,to prohibit discrimi- nation against women.In addition,the Criminal Law 1979,18 the Constitution 1982,19 the General Principles of the Civil Law 1986,20 and 12.Supreme People's Court,"Guanyu renmin fayuan shenli lihun anjian ruhe rending fu-qi ganqing que yi polie de ruogan juti yijian"("Some Specific Opinions regarding the definition of genuine alienation between husband and wife in divorce cases tried by people's courts")in Zhongguo falii nianjian 1990,pp.697-98.New rules regarding the maintenance of children after the divorce of their parents have also recently been introduced:"Lihun an zhong:zinu ruhe fuyang-zuigao Renmin fayuan tichu chuli yijian"("How to deal with the maintenance of children in divorce cases-the Supreme People's Court suggests some methods"),Fazhi ribao,5 May 1994,p.6. 13.Zhonghua Renmin Gongheguo shouyang fa (Adoption Law of the PRC)1991,in Zhongguo falu nianjian bianjibu,Zhongguofalu nianjian 1992(Law Yearbook of China 1992) (Beijing:Falui chubanshe,1992),pp.169-171. 14.Zhonghua Renmin Gongheguo weichengnianren fa (Law of the PRC for the Protection of Minors)1991,in ibid.pp.161-64. 15.Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui(Standing Committee of the National People's Congress)."Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu yanjin maiyin piaochang de Jueding"("Decision of the Standing Committee of the National People's Congress on the strict prohibition of prostitution and patronising prostitutes")1991,in ibid.pp.164-65. 16.Standing Committee of the NPC,"Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu yancheng guaimai bangjia funu he ertong de fanzui de Jueding" ("Decision of the Standing Committee of the National People's Congress regarding the severe punishment of criminals who abduct and sell,or who kidnap,women or children)1991,in bid.pp.16566. 17.Zhonghua Renmin Gongheguo funu quanyi baozhang fa(Law of the PRC for the Protection of Women's Rights and Interests)1992.in Zhongguo falir nianjian bianjibu, Zhongguo fali nianjian 1993(Law Yearbook of China /993)(Beijing:Falui chubanshe,1993). pp.220-22.It should also be noted that in July 1980 China signed CEDAW-the Convention on the Elimination of All Forms of Discrimination Against Women(in force 25 November 1982). 18.Zhonghua Renmin Gongheguo xingfa (Criminal Law of the PRC)1979,in Zhongguo falii nianjian 1987,pp.142-151.Articles 179 to 184 (Chapter VII)deal with the "crimes of disrupting marriage and the family." 19.Zhonghua Renmin Gongheguo Xianfa(Constitution of the PRC)1982,in ibid.pp. 46-59.See,in particular,Chapter II "The Fundamental Rights and Duties of Citizens" (Articles 33-56),especially Articles 45-50.These provisions are rather more detailed than the equivalent provisions in the 1978 Constitution,in particular in regard to the role of the family as a unit of care. 20.Zhonghua Renmin Gongheguo minfa tongze(General Principles of the Civil Law of the PRC)1986,in ibid.pp.68-76.See.in particular.Articles 14,16,17 and 18 (on guardianship),15(domicile).21(the family in relation to the property of a missing person). 103 (freedom of marriage).104 (protection of marriage,family and the socially disadvantaged),105(gender equality in civil rights).147(marriage between a citizen of the People's Republic of China and a foreigner),148(conflicts of law rules regarding maintenance after divorce),and 149 (conflicts of law rules on statutory succession). Downloaded from http:/www.cambridge.org/core.Shanghai JiaoTong University,on 15 Oct 2016 at 08:21:12,subject to the Cambridge Core terms of use available at http:/www.cambridge.org/core/terms.http://dx.doi.org/10.1017/50305741000032938
112 The China Quarterly People's Court interpretation in 1989.12 In 1991 a full code of law for adoption was ushered in,13 as were laws protecting minors'4 and codes prohibiting prostitution and the patronizing of prostitutes,15 and the abduction of women and children.16 The Law for the Protection of Women's Rights and Interests17 was finally introduced in 1993, a belated legislative fulfilment of the Party's long-standing promises to combat traditional gender stereotypes and, more specifically, to prohibit discrimination against women. In addition, the Criminal Law 1979,18 the Constitution 1982,19 the General Principles of the Civil Law 1986,20 and 12. Supreme People's Court, "Guanyu renmin fayuan shenli lihun anjian ruhe rending fu-qi ganqing que yi polie de ruogan juti yijian" ("Some Specific Opinions regarding the definition of genuine alienation between husband and wife in divorce cases tried by people's courts") in Zhongguo falii nianjian 1990, pp. 697-98. New rules regarding the maintenance of children after the divorce of their parents have also recently been introduced: "Lihun an zhong: zinii ruhe fuyang - zuigao Renmin fayuan tichu chuli yijian" ("How to deal with the maintenance of children in divorce cases - the Supreme People's Court suggests some methods"), Fazhi ribao, 5 May 1994, p. 6. 13. Zhonghua Renmin Gongheguo shouyang fa (Adoption Law of the PRC) 1991, in Zhongguo falii nianjian bianjibu, Zhongguofalii nianjian 1992 (Law Yearbook of China 1992) (Beijing: Falii chubanshe, 1992), pp. 169-171. 14. Zhonghua Renmin Gongheguo weichengnianren fa (Law of the PRC for the Protection of Minors) 1991, in ibid. pp. 161-64. 15. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui (Standing Committee of the National People's Congress), "Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu yanjin maiyin piaochang de Jueding" ("Decision of the Standing Committee of the National People's Congress on the strict prohibition of prostitution and patronising prostitutes") 1991, in ibid. pp. 164-65. 16. Standing Committee of the NPC, "Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu yancheng guaimai bangjia funii he ertong de fanzui de Jueding" ("Decision of the Standing Committee of the National People's Congress regarding the severe punishment of criminals who abduct and sell, or who kidnap, women or children") 1991, in ibid. pp. 165-66. 17. Zhonghua Renmin Gongheguo funii quanyi baozhang fa (Law of the PRC for the Protection of Women's Rights and Interests) 1992, in Zhongguo falif nianjian bianjibu, Zhongguo falii nianjian 1993 (Law Yearbook of China 1993) (Beijing: Falii chubanshe, 1993), pp. 220-22. It should also be noted that in July 1980 China signed CEDAW - the Convention on the Elimination of All Forms of Discrimination Against Women (in force 25 November 1982). 18. Zhonghua Renmin Gongheguo xingfa (Criminal Law of the PRC) 1979, in Zhongguo falii nianjian 1987, pp. 142-151. Articles 179 to 184 (Chapter VII) deal with the "crimes of disrupting marriage and the family." 19. Zhonghua Renmin Gongheguo Xianfa (Constitution of the PRC) 1982, in ibid. pp. 46-59. See, in particular, Chapter II "The Fundamental Rights and Duties of Citizens" (Articles 33-56), especially Articles 45-50. These provisions are rather more detailed than the equivalent provisions in the 1978 Constitution, in particular in regard to the role of the family as a unit of care. 20. Zhonghua Renmin Gongheguo minfa tongze (General Principles of the Civil Law of the PRC) 1986, in ibid. pp. 68-76. See, in particular, Articles 14, 16, 17 and 18 (on guardianship), 15 (domicile), 21 (the family in relation to the property of a missing person), 103 (freedom of marriage), 104 (protection of marriage, family and the socially disadvantaged), 105 (gender equality in civil rights), 147 (marriage between a citizen of the People's Republic of China and a foreigner), 148 (conflicts of law rules regarding maintenance after divorce), and 149 (conflicts of law rules on statutory succession). , available at http:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/S0305741000032938 Downloaded from http:/www.cambridge.org/core. Shanghai JiaoTong University, on 15 Oct 2016 at 08:21:12, subject to the Cambridge Core terms of use
The Re-emergence of Family Law 113 the Civil Procedure Laws of 198221 and 199122 all contain provisions significantly affecting marriage and family.Moreover,a regulatory regime for family planning is being put in place,although it does not yet include a general national law on birth limitation.23 The Chinese family in the PRC has itself come a long way in official eyes from the time when it was attacked as an institution inappropriate for a socialist society.Efforts during the Great Leap Forward to weaken the family were abandoned after a very short time,24 and the disruptions to family authority patterns and other aspects of family life caused by the Cultural Revolution are now officially condemned.?5 The family in post- Mao China is seen by the state and the Party as serving a variety of key functions,and increasingly this view is expressed in formal,published law.Official views link sexual conduct firmly to marriage:the family is the only institution within which sexual behaviour is allowed.A wife and her husband are expected to share a sexual relationship and the Supreme People's Court in 1989 stipulated that an"inability to carry out sexual intercourse"(buneng fasheng xingxingwei)constitutes a specific ground for divorce under Article 25 of the Marriage Law 1980.26 Pre-marital and extra-marital sex are not tolerated officially.The family also provides the officially sanctioned matrix within which reproduction takes place and, given the limited degree of immigration which China allows,it is an obvious but important truth that the future existence of society in the PRC depends on the family,just as it does in most societies.The Marriage Law and the Constitution assume that reproduction will only take place in the family when they stipulate that"both husband and wife shall 21.Zhonghua Renmin Gongheguo minshi susong fa(shixing)(Civil Procedure Law of the PRC(for Trial Implementation))1982.in ibid.pp.186-197.See,in particular,Articles 6 and 14 (use of mediation by the courts and by people's mediation committees).97-102(judicial mediation rules),30(4)(the jurisdiction of the courts in inheritance disputes),54(requirement of personal appearance in divorce cases),109(possibility of holding divorce hearings in camera),119(suspension of proceedings in inheritance and divorce cases),124-27(summary procedures).139-140(guardianship).141-43 (ownerless property),and 185-205 (special provision for civil actions involving foreign parties). 22.Zhonghua Renmin Gongheguo minshi susong fa(Civil Procedure Law of the PRC) 1991,in Zhongguo falii nianjian 1992.pp.134-151.See especially Articles 9,16,85-91,128 155,180,and 216(mediation),22 (territorial jurisdiction in cases with a foreign element). 34(2)(territorial jurisdiction in inheritance cases).97 (preliminary execution in cases involving overdue alimony,maintenance and child support),111(7)(interrupted divorce petitions),120(divorce cases held in camera),121 (circuit courts which conduct on-the-spot trials),137(suspension or conclusion of proceedings in cases involving inheritance,divorce, maintenance and so on),and 237-269(special provisions for civil action involving foreign parties). 23.The publication of the current draft of a eugenics law has given rise to considerable and immediate criticism by observers outside China-see below.Such criticisms will further weaken attempts to introduce a full national code of family planning. 24.On such efforts see Michael Palmer,"Some general observations on family law in the People's Republic of China,"in M.Freeman (ed.),Annual Survey of Family Law:1985,Vol. 9(1986),pp.41-68. 25.Ibid. 26.Supreme People's Court."Some Specific Opinions on divorce,"at Article 1. 27.Marriage Law 1980,Articles 2 and 12. 28.Constitution 1982,Article 49. Downloaded from http:/www.cambridge.org/core.Shanghai JiaoTong University,on 15 Oct 2016 at 08:21:12,subject to the Cambridge Core terms of use available at http:/www.cambridge.org/core/terms.http://dx.doi.org/10.1017/50305741000032938
The Re-emergence of Family Law 113 the Civil Procedure Laws of 19822 ' and 199122 all contain provisions significantly affecting marriage and family. Moreover, a regulatory regime for family planning is being put in place, although it does not yet include a general national law on birth limitation.23 The Chinese family in the PRC has itself come a long way in official eyes from the time when it was attacked as an institution inappropriate for a socialist society. Efforts during the Great Leap Forward to weaken the family were abandoned after a very short time,24 and the disruptions to family authority patterns and other aspects of family life caused by the Cultural Revolution are now officially condemned.25 The family in postMao China is seen by the state and the Party as serving a variety of key functions, and increasingly this view is expressed in formal, published law. Official views link sexual conduct firmly to marriage: the family is the only institution within which sexual behaviour is allowed. A wife and her husband are expected to share a sexual relationship and the Supreme People's Court in 1989 stipulated that an "inability to carry out sexual intercourse" (buneng fasheng xingxingwei) constitutes a specific ground for divorce under Article 25 of the Marriage Law 1980.26 Pre-marital and extra-marital sex are not tolerated officially. The family also provides the officially sanctioned matrix within which reproduction takes place and, given the limited degree of immigration which China allows, it is an . obvious but important truth that the future existence of society in the PRC f depends on the family, just as it does in most societies. The Marriage Law27 and the Constitution28 assume that reproduction will only take place in the family when they stipulate that "both husband and wife shall 21. Zhonghua Renmin Gongheguo minshi susong fa (shixing) (Civil Procedure Law of the PRC (for Trial Implementation)) 1982, in ibid. pp. 186-197. See, in particular, Articles 6 and 14 (use of mediation by the courts and by people's mediation committees), 97-102 (judicial mediation rules), 30(4) (the jurisdiction of the courts in inheritance disputes), 54 (requirement of personal appearance in divorce cases), 109 (possibility of holding divorce hearings in camera), 119 (suspension of proceedings in inheritance and divorce cases), 124—27 (summary procedures), 139-140 (guardianship), 141-^43 (ownerless property), and 185-205 (special provision for civil actions involving foreign parties). 22. Zhonghua Renmin Gongheguo minshi susong fa (Civil Procedure Law of the PRC) l99l,inZhongguofaliinianjian 1992, pp. 134-151. See especially Articles 9,16,85-91,128, 155, 180, and 216 (mediation), 22 (territorial jurisdiction in cases with a foreign element), 34(2) (territorial jurisdiction in inheritance cases), 97 (preliminary execution in cases involving overdue alimony, maintenance and child support), 111(7) (interrupted divorce petitions), 120 (divorce cases held in camera), 121 (circuit courts which conduct on-the-spot trials), 137 (suspension or conclusion of proceedings in cases involving inheritance, divorce, maintenance and so on), and 237-269 (special provisions for civil action involving foreign parties). 23. The publication of the current draft of a eugenics law has given rise to considerable and immediate criticism by observers outside China - see below. Such criticisms will further weaken attempts to introduce a full national code of family planning. 24. On such efforts see Michael Palmer, "Some general observations on family law in the People's Republic of China," in M. Freeman (ed.), Annual Survey of Family Law: 1985, Vol. 9 (1986), pp. 41-68. 25. Ibid. 26. Supreme People's Court. "Some Specific Opinions on divorce," at Article 1. 27. Marriage Law 1980, Articles 2 and 12. 28. Constitution 1982, Article 49. , available at http:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/S0305741000032938 Downloaded from http:/www.cambridge.org/core. Shanghai JiaoTong University, on 15 Oct 2016 at 08:21:12, subject to the Cambridge Core terms of use
114 The China Quarterly have the duty to practise family planning."Provincial family planning regulations are equally insistent:for example,those currently in force for Sichuan not only repeat this requirement (at Article 2)but also stipulate that "births may not occur outside marriage"(bude feihun shengyu) (Article 7).29 The Marriage Law 1980 at Article 18 attempts to ensure that illegitimate children are not excluded from full participation in society. But this has not meant the abolition of the concept of illegitimacy in PRC law-judicial interpretations of Article 1830 and the apparent denial of household registration to children born outside marriage both indicate its continued importance.3 Of course,the authorities are attempting through effective planning and methods of birth control to reduce the number and regulate the timing of the children that a couple produces,thereby making reproduction increasingly a matter of rational social choice.It is fairly clear,however,that outside the cities in the PRC it is not socially acceptable for a married couple to remain childless nor,indeed,to be content with just one child,especially if that child is a daughter,and to some extent provincial family planning regulations have had to take this into account.32 PRC law also requires that the family undertakes the crucial tasks of providing protection for children and socializing them into society. Article 15 of the Marriage Law 1980 specifies that"parents have the duty to rear and educate their children"33 and insists that "infanticide by drowning and other acts causing serious harm to infants are prohibited. 29.Sichuan sheng jihua shengyu tiaoli(Sichuan Province Planned Birth Regulations) 1987,in Zhongguo falu nianjian bianjibu,Zhongguo falui nianjian 1988 (Law Yearbook of China /988)(Beijing:Falu chubanshe,1988).pp.482-83 at 482. 30.The status"illegitimate children"or"children born out of wedlock"(feihunsheng zinii) was judicially defined,with reference to a 1953 Central People's Government"explanation" (jieda).by the Supreme People's Court in 1974 in an official reply to an enquiry from the Higher People's Court of Shanxi Province.The court stated that"children who are born of a man and woman who are not yet married,or of a man or woman who is already married and who has improper sexual relations with another person.are all illegitimate children."The court was clearly confirming the existence of a legal status in this interpretation.A judicial instruction issued by the Supreme People's Court in 1980 also dealt with a question of illegitimacy in a manner which suggests that it continues to have a formal significance in Chinese law.Finally,it is difficult to see how Article 19 can be read as abolishing the status of illegitimacy when the distinction between legitimate and illegitimate children is also referred to in the Inheritance Law of the PRC 1985.Paragraph 5 of Article 10 of that law provides as follows:"the children referred to in this law include legitimate children, illegitimate children and adopted children as well as step-children who supported or were supported by the deceased."In addition,it should be noted that the unofficial English-language text of the Inheritance Law as provided by the Legislative Affairs Commission of the Standing Committee of the National People's Congress specifically translates the term"feihunsheng zini"as "illegitimate children." 31.For further details see Michael Palmer,"The People's Republic of China:reacting to rapid social change"in M.Freeman(ed.).Annual Survey of Family Law:1988,Vol.12(1990), pp.438460atpp.445-47. 32.For example,those for Shandong which allow a married woman over the age of 30 to attempt a second pregnancy if her first child is a daughter-see Palmer,"Reacting to change,"p.448. 33.See also the Constitution 1982 at Article 49. 34.Law of the PRC for the Protection of Minors 1991.Article 8 of the Law also prohibits discrimination against female children and"drowning or abandoning"infants.The Criminal Law 1979 at Article 182 makes abuse (niiedai)of a family member which leads to serious Downloaded from http:/www.cambridge.org/core.Shanghai JiaoTong University,on 15 Oct 2016 at 08:21:12,subject to the Cambridge Core terms of use available at http:/www.cambridge.org/core/terms.http://dx.doi.org/10.1017/50305741000032938
114 The China Quarterly have the duty to practise family planning." Provincial family planning regulations are equally insistent: for example, those currently in force for Sichuan not only repeat this requirement (at Article 2) but also stipulate that "births may not occur outside marriage" (bude feihun shengyu) (Article I).29 The Marriage Law 1980 at Article 18 attempts to ensure that illegitimate children are not excluded from full participation in society. But this has not meant the abolition of the concept of illegitimacy in PRC law-judicial interpretations of Article 1830 and the apparent denial of household registration to children born outside marriage both indicate its continued importance.31 Of course, the authorities are attempting through effective planning and methods of birth control to reduce the number and regulate the timing of the children that a couple produces, thereby making reproduction increasingly a matter of rational social choice. It is fairly clear, however, that outside the cities in the PRC it is not socially acceptable for a married couple to remain childless nor, indeed, to be content with just one child, especially if that child is a daughter, and to some extent provincial family planning regulations have had to take this into account.32 PRC law also requires that the family undertakes the crucial tasks of providing protection for children and socializing them into society. Article 15 of the Marriage Law 1980 specifies that "parents have the duty to rear and educate their children"33 and insists that "infanticide by drowning and other acts causing serious harm to infants are prohibited."34 29. Sichuan sheng jihua shengyu tiaoli (Sichuan Province Planned Birth Regulations) 1987, in Zhongguo falii nianjian bianjibu, Zhongguo fate nianjian 1988 (Law Yearbook of China 1988) (Beijing: Falii chubanshe, 1988), pp. 482-83 at 482. 30. The status "illegitimate children" or "children born out of wedlock" (feihunsheng zinii) was judicially defined, with reference to a 1953 Central People's Government "explanation" (Jieda), by the Supreme People's Court in 1974 in an official reply to an enquiry from the Higher People's Court of Shanxi Province. The court stated that "children who are born of a man and woman who are not yet married, or of a man or woman who is already married and who has improper sexual relations with another person, are all illegitimate children." The court was clearly confirming the existence of a legal status in this interpretation. A judicial instruction issued by the Supreme People's Court in 1980 also dealt with a question of illegitimacy in a manner which suggests that it continues to have a formal significance in Chinese law. Finally, it is difficult to see how Article 19 can be read as abolishing the status of illegitimacy when the distinction between legitimate and illegitimate children is also referred to in the Inheritance Law of the PRC 1985. Paragraph 5 of Article 10 of that law provides as follows: "the children referred to in this law include legitimate children, illegitimate children and adopted children as well as step-children who supported or were supported by the deceased." In addition, it should be noted that the unofficial English-language text of the Inheritance Law as provided by the Legislative Affairs Commission of the Standing Committee of the National People's Congress specifically translates the term "feihunsheng zinii" as "illegitimate children." 31. For further details see Michael Palmer, "The People's Republic of China: reacting to rapid social change" in M. Freeman (ed.). Annual Sun-ey of Family Law: 1988, Vol. 12(1990), pp. 438-460 at pp. 445-47. 32. For example, those for Shandong which allow a married woman over the age of 30 to attempt a second pregnancy if her first child is a daughter - see Palmer, "Reacting to change," p. 448. 33. See also the Constitution 1982 at Article 49. 34. Law of the PRC for the Protection of Minors 1991. Article 8 of the Law also prohibits discrimination against female children and "drowning or abandoning" infants. The Criminal Law 1979 at Article 182 makes abuse (niiedai) of a family member which leads to serious , available at http:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/S0305741000032938 Downloaded from http:/www.cambridge.org/core. Shanghai JiaoTong University, on 15 Oct 2016 at 08:21:12, subject to the Cambridge Core terms of use