The Re-emergence of Family Law 115 Article 17 places on parents a duty to discipline (guanjiao)and protect (baohu)their children and to compensate those who have suffered economic loss as a result of the harmful behaviour of their children. These provisions are absent from the 1950 Marriage Law.Article 20 of the new law stipulates that relations between adopting parents and their adopted children are governed by the same obligations as apply to relations between parents and children.In addition,Articles 21,22 and 23 oblige step-parents,grandparents and elder brothers and sisters respect- ively to provide care for children in relevant circumstances. The PRC family is,of course,a primary agent of socialization.The authorities expect parents to pass on appropriate social and culture values to their children and to rear them so that they become fully socialized members of Chinese society.This parental responsibility includes an obligation to ensure that children properly participate in other,more specialized,institutions that also transmit skills and provide care for young people.As noted above,Article 17 of the Marriage Law 1980 stipulates that "parents shall have the right and duty to subject their children who are minors to discipline and to protect them."The Law for the Protection of Minors 199135 is now the principal legislative statement on the manner in which children in socialist China should learn their social skills and obedient habits:it is formulated in order to protect the rights and interests of minors and to promote their development as "successors to the socialist cause"(Article 1),and requires the family,the state,schools and society to educate minors in good socialist ways (Article 3).36 The particular importance of the family is reflected in the fact that the first substantive chapter is devoted to family protection (jiating baohu).This chapter stipulates that parents must refrain from mistreating their children,especially if the latter are female or are handicapped(Article 8),37 and ensure that minors'rights to attend school are respected (Article 9).In addition,the Law of the People's Republic of China for the Protection of Women's Rights and Interests 1992 provides further support for the position of young females.38 footnote continued injury or death an offence punishable by between two and seven years'fixed term imprisonment.According to Article 183 refusal to fulfil aduty to support achild may in serious circumstances be punishable by five years'fixed term imprisonment. 35.Introduced at the national level primarily as a result of the work of the Communist Youth League,but its origins lie in developments at the provincial level.Various institutions in Shanghai including,in particular,the East China Institute of Politics and Law,took the lead in this field and,as a result.Shanghai Municipality introduced juvenile regulations in the mid-1980s.Many provinces followed suit and,eventually,a national law was promulgated. 36.Thus,the Minors'Protection Law 1991 at Chapter IIl places obligations of protection on schools,Chapter IV(Social Protection)requires a wide variety of social institutions as well as individuals to act in a manner conducive to the welfare of children,and Chapter V(Judicial Protection)provides for the courts-including newly-established juvenile benches-a definite role in protecting minors'interests. 37.Thereby reinforcing the provision contained in Article 182 of the Criminal Law 1979 against abuse of family members. 38.Women's Protection Law 1992,especially Articles 16 and 17 (education rights). Article 22(prohibition of employment of girls under the age of 16)and Article 35(prohibition of infanticide). 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 115 Article 17 places on parents a duty to discipline (guanjiao) and protect (baohu) their children and to compensate those who have suffered economic loss as a result of the harmful behaviour of their children. These provisions are absent from the 1950 Marriage Law. Article 20 of the new law stipulates that relations between adopting parents and their adopted children are governed by the same obligations as apply to relations between parents and children. In addition, Articles 21, 22 and 23 oblige step-parents, grandparents and elder brothers and sisters respectively to provide care for children in relevant circumstances. The PRC family is, of course, a primary agent of socialization. The authorities expect parents to pass on appropriate social and culture values to their children and to rear them so that they become fully socialized members of Chinese society. This parental responsibility includes an obligation to ensure that children properly participate in other, more specialized, institutions that also transmit skills and provide care for young people. As noted above, Article 17 of the Marriage Law 1980 stipulates that "parents shall have the right and duty to subject their children who are minors to discipline and to protect them." The Law for the Protection of Minors 199135 is now the principal legislative statement on the manner in which children in socialist China should learn their social skills and obedient habits: it is formulated in order to protect the rights and interests of minors and to promote their development as "successors to the socialist cause" (Article 1), and requires the family, the state, schools and society to educate minors in good socialist ways (Article 3).36 The particular importance of the family is reflected in the fact that the first substantive chapter is devoted to family protection (jiating baohu). This chapter stipulates that parents must refrain from mistreating their children, especially if the latter are female or are handicapped (Article 8),37 and ensure that minors' rights to attend school are respected (Article 9). In addition, the Law of the People's Republic of China for the Protection of Women's Rights and Interests 1992 provides further support for the position of young females.38 footnote continued injury or death an offence punishable by between two and seven years' fixed term imprisonment. According to Article 183 refusal to fulfil a duty to support a child may in serious circumstances be punishable by five years' fixed term imprisonment. 35. Introduced at the national level primarily as a result of the work of the Communist Youth League, but its origins lie in developments at the provincial level. Various institutions in Shanghai including, in particular, the East China Institute of Politics and Law, took the lead in this field and, as a result, Shanghai Municipality introduced juvenile regulations in the mid-1980s. Many provinces followed suit and, eventually, a national law was promulgated. 36. Thus, the Minors' Protection Law 1991 at Chapter III places obligations of protection on schools, Chapter IV (Social Protection) requires a wide variety of social institutions as well as individuals to act in a manner conducive to the welfare of children, and Chapter V (Judicial Protection) provides for the courts - including newly-established juvenile benches - a definite role in protecting minors' interests. 37. Thereby reinforcing the provision contained in Article 182 of the Criminal Law 1979 against abuse of family members. 38. Women's Protection Law 1992, especially Articles 16 and 17 (education rights), Article 22 (prohibition of employment of girls under the age of 16) and Article 35 (prohibition of infanticide). , 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
116 The China Quarterly The family in the PRC is also obliged by law to care for the elderly and the infirm.The important PRC legal principle of"mutuality of rights and obligations"(quanli yiwu xiang yizhi)runs through modern Chinese family law and means that some of the children's rights outlined above are balanced by reciprocal duties.This is clearly specified in the third paragraph of Article 49 of the Constitution 1982:"parents have the duty to rear and educate their children who are minors and children who have come of age have the duty to support and assist their parents."More generally,the Marriage Law 1980 at Article 3 stipulates that "maltreatment and desertion of one family member by another shall be prohibited."Children are obliged to provide support and assistance for their parents by virtue of Article 15 of the Marriage Law 1980,and the Criminal Law 1979 at Article 183 makes it an offence,punishable by a sentence of not more than five years'criminal detention,for an adult child to refuse to perform her or his proper duty to support an aged member.And,as noted,Article 182 of the same law makes abuse of a family member(including,of course,an elderly parent)punishable by up to two years'fixed term imprisonment.In addition,the Women's Protec- tion Law 1992,at Article 35,makes it an offence "to abuse or forsake elderly women."The Inheritance Law 1985 at Article 7 provides for the disinheritance of an heir who has,inter alia,committed "a serious act of abandoning or maltreating the deceased."Article 13 of the same Law stipulates that heirs who had provided care and support for the deceased may be given larger shares,whereas those who"had the ability and were in a position to maintain the deceased but failed to fulfil their duties shall be given no share or a smaller share of the estate."Moreover,Sections 37 and 61 of the Opinions of the Supreme Court on Some Questions Concerning the Rigorous Enforcement of the Inheritance Law 198539 also give special consideration to indigent family members.In addition, Article 20 of the Marriage Law 1980 imposes on adopted children the same duty to care for their adopting parents as applies in ordinary parent-child ties and,as indicated elsewhere,adopted children are en- couraged,if only as a matter of morality,also to support indigent natural parents.40 Articles 21 and 22 have the effect,in certain circumstances,of imposing duties of care on a step-child vis-a-vis her or his step-parent and on a grandchild vis-a-vis her or his grandparents.Plans are currently under way for the introduction of a full code of law specifically protecting the rights of the elderly,the last of the several codes extending the 39.Supreme People's Court,"Guanyu guanche zhixing 'Zhonghua renmin gongheguo jicheng fa'ruogan wenti de yijian"("Opinions of the Supreme Court on Some Questions Concerning the Rigorous Enforcement of the Inheritance Law")1985,in Liu Suping,Hunyin faxue cankao ziliao (Reference Materials on the Study of the Marriage Law)(Beijing: Zhongguo renmin daxue chubanshe,1989).pp.180-88. 40.In my view this should be seen as an extension of-rather than a detraction from-the idea of the family as a unit of care.The concern is to interpose the natural family between the legal obligations which rest in the adopting family on the one hand and,on the other possible state or collective responsibility to provide support.Article 45 of the Constitution 1982 provides that"citizens of the People's Republic of China have the right to material assistance from the state and society when they are old,ill or disabled."It should be added here that there is no rule in PRC law requiring anonymity in adoptions.See also n.86. 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
116 The China Quarterly The family in the PRC is also obliged by law to care for the elderly and the infirm. The important PRC legal principle of "mutuality of rights and obligations" (quanli yiwu xiang yizhi) runs through modern Chinese family law and means that some of the children's rights outlined above are balanced by reciprocal duties. This is clearly specified in the third paragraph of Article 49 of the Constitution 1982: "parents have the duty to rear and educate their children who are minors and children who have come of age have the duty to support and assist their parents." More generally, the Marriage Law 1980 at Article 3 stipulates that "maltreatment and desertion of one family member by another shall be prohibited." Children are obliged to provide support and assistance for their parents by virtue of Article 15 of the Marriage Law 1980, and the Criminal Law 1979 at Article 183 makes it an offence, punishable by a sentence of not more than five years' criminal detention, for an adult child to refuse to perform her or his proper duty to support an aged member. And, as noted, Article 182 of the same law makes abuse of a family member (including, of course, an elderly parent) punishable by up to two years' fixed term imprisonment. In addition, the Women's Protection Law 1992, at Article 35, makes it an offence "to abuse or forsake elderly women." The Inheritance Law 1985 at Article 7 provides for the disinheritance of an heir who has, inter alia, committed "a serious act of abandoning or maltreating the deceased." Article 13 of the same Law stipulates that heirs who had provided care and support for the deceased may be given larger shares, whereas those who "had the ability and were in a position to maintain the deceased but failed to fulfil their duties shall be given no share or a smaller share of the estate." Moreover, Sections 37 and 61 of the Opinions of the Supreme Court on Some Questions Concerning the Rigorous Enforcement of the Inheritance Law 198539 also give special consideration to indigent family members. In addition, Article 20 of the Marriage Law 1980 imposes on adopted children the same duty to care for their adopting parents as applies in ordinary parent-child ties and, as indicated elsewhere, adopted children are encouraged, if only as a matter of morality, also to support indigent natural parents.40 Articles 21 and 22 have the effect, in certain circumstances, of imposing duties of care on a step-child vis-a-vis her or his step-parent and on a grandchild vis-a-vis her or his grandparents. Plans are currently under way for the introduction of a full code of law specifically protecting the rights of the elderly, the last of the several codes extending the 39. Supreme People's Court, "Guanyu guanche zhixing 'Zhonghua renmin gongheguo jicheng fa' ruogan wenti de yijian" ("Opinions of the Supreme Court on Some Questions Concerning the Rigorous Enforcement of the Inheritance Law") 1985, in Liu Suping, Hunyin faxue cankao ziliao (Reference Materials on the Study of the Marriage Law) (Beijing: Zhongguo renmin daxue chubanshe, 1989), pp. 180-88. 40. In my view this should be seen as an extension of - rather than a detraction from - the idea of the family as a unit of care. The concern is to interpose the natural family between the legal obligations which rest in the adopting family on the one hand and, on the other, possible state or collective responsibility to provide support. Article 45 of the Constitution 1982 provides that "citizens of the People's Republic of China have the right to material assistance from the state and society when they are old, ill or disabled." It should be added here that there is no rule in PRC law requiring anonymity in adoptions. See also n. 86. , 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 117 promise contained in the Marriage Law 1980 that"the lawful rights and interests of women,children and old people shall be protected."4 The post-Mao Chinese family is also an important unit of economic production and consumption,especially in the countryside.Until very recently,most urban dwellers continued to work in the state and collec- tive sectors,but in the rural areas decollectivization proceeded so rapidly that"by the mid-1980s most rural families were operating in a political economy of family tenancy.2 The resumption of production responsibil- ities by the family has been reinforced by family law in a number of ways.For example,the Inheritance Law 1985 confirmed that the means of production may be inherited and added that"personal benefits accruing from a contract entered into by an individual are heritable."43 The provisions governing intestate succession assume,of course,that property will devolve on close family members.In addition,Article 29 discourages the break-up of a productive estate when property devolves through inheritance,and Section 58 of the Opinions of the Supreme People's Court on Some Questions Concerning the Rigorous Enforcement of the Inheritance Law 1985 also emphasizes the importance of protecting production imperatives.44 It will be clear from the above that in this article "family law"is conceived in fairly broad terms,certainly in terms somewhat wider than the approach normally adopted in PRC textbooks on "marriage law" (hunyin fa).45 However,given the central position that the family once more occupies in Chinese social life,it is submitted that this broad perspective is essential.Far too much of the existing literature looks at only the 1950 and 1980 Marriage Laws.Moreover,even a very narrow view of PRC family law cannot disguise the impressive pace and scope of change,especially if the relevant administrative and judicial develop- ments are taken into account.In particular,the Supreme People's Court has made highly significant interpretations of the Marriage Law and the Inheritance Law,and,as already indicated,has specifically addressed problems of marriage registration and grounds for divorce.Virtually no area of marriage and family has been left untouched by this "legal 41.Nevertheless,some idea of the likely framework of rules designed to ensure that the family functions effectively as a unit of care for the elderly may be gained from an examination of the recently promulgated provincial regulations protecting the rights of the aged.See,for example,Fujian sheng laonianren baohu tiaoli (Fujian Provincial Regulations for the Protection of the Elderly),in Zhongguo falui nianjian bianjibu,Zhongguo falii nianjian 1991 (Law Yearbook of China 1991)(Beijing:Falui chubanshe,1991),pp.491-93. 42.Deborah Davis and Stevan Harrell,"Introduction:the impact of post-Mao reforms on family life,"in Deborah Davis and Stevan Harrell (eds.),Chinese Families in the Post-Mao Era(Berkeley:University of California Press,1993),pp.1-22 at p.2. 43.Inheritance Law 1985 at Article 4.This extends Article 13 of the Constitution 1982 which stipulates that the"state protects,according to the law,the right of citizens to inherit pnvate property." 44.See Palmer,"China's new Inheritance Law." 45.Chinese textbooks on family law tend to restrict their scope to the principal areas of marriage and family dealt with in the Marriage Law and Marriage Registration Regulations. As a result,crucially relevant areas such as birth limitation are often given little or no treatment. 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 117 promise contained in the Marriage Law 1980 that "the lawful rights and interests of women, children and old people shall be protected."41 The post-Mao Chinese family is also an important unit of economic production and consumption, especially in the countryside. Until very recently, most urban dwellers continued to work in the state and collective sectors, but in the rural areas decollectivization proceeded so rapidly that "by the mid-1980s most rural families were operating in a political economy of family tenancy."42 The resumption of production responsibilities by the family has been reinforced by family law in a number of ways. For example, the Inheritance Law 1985 confirmed that the means of production may be inherited and added that "personal benefits accruing from a contract entered into by an individual are heritable."43 The provisions governing intestate succession assume, of course, that property will devolve on close family members. In addition, Article 29 discourages the break-up of a productive estate when property devolves through inheritance, and Section 58 of the Opinions of the Supreme People's Court on Some Questions Concerning the Rigorous Enforcement of the Inheritance Law 1985 also emphasizes the importance of protecting production imperatives.44 It will be clear from the above that in this article "family law" is conceived in fairly broad terms, certainly in terms somewhat wider than the approach normally adopted in PRC textbooks on "marriage law" (hunyin fa).45 However, given the central position that the family once more occupies in Chinese social life, it is submitted that this broad perspective is essential. Far too much of the existing literature looks at only the 1950 and 1980 Marriage Laws. Moreover, even a very narrow view of PRC family law cannot disguise the impressive pace and scope of change, especially if the relevant administrative and judicial developments are taken into account. In particular, the Supreme People's Court has made highly significant interpretations of the Marriage Law and the Inheritance Law, and, as already indicated, has specifically addressed problems of marriage registration and grounds for divorce. Virtually no area of marriage and family has been left untouched by this "legal 41. Nevertheless, some idea of the likely framework of rules designed to ensure that the family functions effectively as a unit of care for the elderly may be gained from an examination of the recently promulgated provincial regulations protecting the rights of the aged. See, for example, Fujian sheng laonianren baohu tiaoli (Fujian Provincial Regulations for the Protection of the Elderly), in Zhongguo falii nianjian bianjibu, Zhongguo falii nianjian 1991 (Law Yearbook of China 1991) (Beijing: Falu chubanshe, 1991), pp. 491-93. 42. Deborah Davis and Stevan Harrell, "Introduction: the impact of post-Mao reforms on family life," in Deborah Davis and Stevan Harrell (eds.), Chinese Families in the Post-Mao Era (Berkeley: University of California Press, 1993), pp. 1-22 at p. 2. 43. Inheritance Law 1985 at Article 4. This extends Article 13 of the Constitution 1982 which stipulates that the "state protects, according to the law, the right of citizens to inherit private property." 44. See Palmer, "China's new Inheritance Law." 45. Chinese textbooks on family law tend to restrict their scope to the principal areas of marriage and family dealt with in the Marriage Law and Marriage Registration Regulations. As a result, crucially relevant areas such as birth limitation are often given little or no treatment. , 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
118 The China Quarterly revolution,"but three particular aspects are addressed here because they lie at the heart of PRC family law:marriage,divorce and reproduction. Marriage46 Marriages in the PRC are concluded not by celebration but,rather,by registration.The basic procedure for the creation of marriage was initially introduced by Article 8 of the Chinese Soviet Republic Marriage Regula- tions 1931.47 This provision stipulated,inter alia,that "in order to contract marriage the man and the woman are required to approach together the xiang or municipal soviet to register the marriage and receive a marriage certificate."The requirement of registration (and receipt of certificate)was applied throughout the People's Republic after Liberation, and was reaffirmed in the most recent version of the marriage registration regulations (1994)at Articles 9 and 19.The strict requirement of regis- tration represented a radical break with social practice at the time of its introduction,and in fact the old practices remain to a significant extent in many parts of the mainland.In imperial China the formalities of marriage8 were primarily governed by local custom and consisted of the celebratory rituals of betrothal,procession.presentation of bride to the groom's family and ancestors,and public banquets.In the contemporary Chinese countryside it is these rites,rather than registration,that are often regarded as crucial. Despite the obvious importance that the authorities in the PRC have attached to marriage registration work,this aspect of Chinese family law and social life has received scant attention in Western-language writing on modern China.As early as 1957,however,one writer had identified the serious difficulties which the introduction of a system of compulsory registration in the face of strongly entrenched local custom was creating. Van der Valk observed the development of a great disparity between the law and social practice in a number of jurisdictions which had imposed compulsory registration.9 The failure to register marriage remains a problem today but is no longer simply a function of the continued influence of customary or"feudal"norms and values.The programme of rural reforms during the 1980s,especially the revival of the family as a unit of production,has encouraged country folk to "zao,kuai,duo"-that is,to marry early,have children quickly and bear many children-rather than to follow the official prescription to marry late,delay reproduction and give birth to one or at most two children.In these circumstances, marriage registration is to be avoided if at all possible.As a result of this 46.For an earlier treatment of problems of marriage registration in the post-Mao PRC see Michael Palmer,"China's new marriage regulations,"in M.D.A.Freeman (ed.),Annual Survey of Family Law:1986,Vol.10 (1987).pp.39-57. 47.Liu Suping.Hunyin fa xue cankao ziliao,pp.25-27 48.That is,the formalities for that type of union characterized by Wolf and Huang as "major marriage":see Arthur Wolf and Chien-shan Huang,Marriage and Adoption in China 1845-/945 (Stanford:Stanford University Press,1980. 49.Van der Valk,"The registration of marriage,"especially pp.352-53. 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
118 The China Quarterly revolution," but three particular aspects are addressed here because they lie at the heart of PRC family law: marriage, divorce and reproduction. Marriage46 Marriages in the PRC are concluded not by celebration but, rather, by registration. The basic procedure for the creation of marriage was initially introduced by Article 8 of the Chinese Soviet Republic Marriage Regulations 1931.47 This provision stipulated, inter alia, that "in order to contract marriage the man and the woman are required to approach together the xiang or municipal soviet to register the marriage and receive a marriage certificate." The requirement of registration (and receipt of certificate) was applied throughout the People's Republic after Liberation, and was reaffirmed in the most recent version of the marriage registration regulations (1994) at Articles 9 and 19. The strict requirement of registration represented a radical break with social practice at the time of its introduction, and in fact the old practices remain to a significant extent in many parts of the mainland. In imperial China the formalities of marriage48 were primarily governed by local custom and consisted of the celebratory rituals of betrothal, procession, presentation of bride to the groom's family and ancestors, and public banquets. In the contemporary Chinese countryside it is these rites, rather than registration, that are often regarded as crucial. Despite the obvious importance that the authorities in the PRC have attached to marriage registration work, this aspect of Chinese family law and social life has received scant attention in Western-language writing on modern China. As early as 1957, however, one writer had identified the serious difficulties which the introduction of a system of compulsory registration in the face of strongly entrenched local custom was creating. Van der Valk observed the development of a great disparity between the law and social practice in a number of jurisdictions which had imposed compulsory registration.49 The failure to register marriage remains a problem today but is no longer simply a function of the continued influence of customary or "feudal" norms and values. The programme of rural reforms during the 1980s, especially the revival of the family as a unit of production, has encouraged country folk to "zao, kuai, duo" - that is, to marry early, have children quickly and bear many children - rather than to follow the official prescription to marry late, delay reproduction and give birth to one or at most two children. In these circumstances, marriage registration is to be avoided if at all possible. As a result of this 46. For an earlier treatment of problems of marriage registration in the post-Mao PRC see Michael Palmer, "China's new marriage regulations," in M. D. A. Freeman (ed.), Annual Survey of Family Law: 1986, Vol. 10 (1987), pp. 39-57. 47. Liu Suping, Hunyinfa xue cankao ziliao, pp. 25-27. 48. That is, the formalities for that type of union characterized by Wolf and Huang as "major marriage": see Arthur Wolf and Chien-shan Huang, Marriage and Adoption in China 1845-1945 (Stanford: Stanford University Press, 1980. 49. Van der Valk, "The registration of marriage," especially pp. 352-53. , 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