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
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
The Re-emergence of Family Law 119 sort of pressure,it is reported that in some areas of rural China as many as 80 per cent of all "unions"currently being entered into are unregis- tered.so Nevertheless,various accounts in the PRC legal press suggest that the authorities are increasingly concerned to enforce registration.5I This view was confirmed in 1989 by important Opinions from the Supreme People's Court on handling matrimonial cases in which the couple have not registered their relationship.These Opinions significantly reduce the scope of Chinese courts to characterize an unregistered relationship as a de facto marriage (shishi hunyin)rather than mere cohabitation.However, it remains to be seen how successful or sustained these efforts will be,for the Communist authorities have long felt the need to strike some sort of policy balance between the goal of ensuring that all couples register and the need to adopt a flexible and even accommodating stance towards individuals bound by an unregistered relationship which requires dissol- ution. This ambivalence can be located in some of the earliest Chinese Communist legislation on marriage formalities.Thus,in the 1934 Mar- riage Law of the Chinese Soviet Republic2 the requirement of regis- tration in Article 8 was followed in Article 9 by an acceptance of unregistered cohabitation as a valid form of marriage:"in cases of a man and a woman cohabiting,whether or not they have registered marriage, [the couple]shall be considered to have contracted marriage."This explicit characterization of cohabitation as valid marriage was not repli- cated in the first Marriage Law of the PRC,which came into force on 1 May 1950.The new legislation,at Article 6,defined the creation of marriage as registration by the parties and the issue of marriage certificates to the couple. Judicial practice and government policy in subsequent years during the 1950s,as Meijers3 has shown,continued to afford recognition to unregis- tered marriages.They did so because to do otherwise in a jurisdiction in which so many people relied on customary celebration to conclude matriage would be both impractical and unfair to the parties.Indeed,the 50.See,for example,Cheng Zongshu and Ma Chengdong,"Shishi hunyin:yici buying luanyong"("De facto marriage:a term which should not be used carelessly).Shehui (Sociery),No.6(1986),pp.30-31,and Kuang Ke,"Renkou chusheng lifa chuyi"("My humble opinion regarding population and birth legislation"),Faxue (Jurisprudence),No.12 (1989),pp.88-90. 51.See,for example,the case of Mr and Mrs Jian Zhiliang who early in 1991 were fined for the 12 days'"illegal cohabitation"(feifa tongju)that had passed between the celebration in customary form and the formal registration of their marriage."Women de hunyin shi weifa ma?"("Is our marriage illegal?).Fazhi ribao,6 June 1991.p.3.See also,for example,the account of a decision to terminate a pregnancy in a marriage celebrated by customary formalities only on the ground that failure to register meant that the mother-to-be was unmarried,in Zhang Meizhan,"Weihun xian yun shi yuan budong hunyin fa"("Failure to understand the Marriage Law is the sole reason for this pre-marital pregnancy"),Fazhi ribao 22 January 1990.p.3. 52.Zhonghua suwei'ai gongheguo hunyin fa (Marriage Law of the Chinese Soviet Republic)1934,in Liu Suping,Hunyin fa xue cankao ziliao,pp.28-30. 53.Marinus Meijer,Marriage Law and Policy in the Chinese People's Republic (Hong Kong:University of Hong Press,1971),pp.178-189. 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 119 sort of pressure, it is reported that in some areas of rural China as many as 80 per cent of all "unions" currently being entered into are unregistered.50 Nevertheless, various accounts in the PRC legal press suggest that the authorities are increasingly concerned to enforce registration.51 This view was confirmed in 1989 by important Opinions from the Supreme People's Court on handling matrimonial cases in which the couple have not registered their relationship. These Opinions significantly reduce the scope of Chinese courts to characterize an unregistered relationship as a de facto marriage (shishi hunyiri) rather than mere cohabitation. However, it remains to be seen how successful or sustained these efforts will be, for the Communist authorities have long felt the need to strike some sort of policy balance between the goal of ensuring that all couples register and the need to adopt a flexible and even accommodating stance towards individuals bound by an unregistered relationship which requires dissolution. This ambivalence can be located in some of the earliest Chinese Communist legislation on marriage formalities. Thus, in the 1934 Marriage Law of the Chinese Soviet Republic52 the requirement of registration in Article 8 was followed in Article 9 by an acceptance of unregistered cohabitation as a valid form of marriage: "in cases of a man and a woman cohabiting, whether or not they have registered marriage, [the couple] shall be considered to have contracted marriage." This explicit characterization of cohabitation as valid marriage was not replicated in the first Marriage Law of the PRC, which came into force on 1 May 1950. The new legislation, at Article 6, defined the creation of marriage as registration by the parties and the issue of marriage certificates to the couple. Judicial practice and government policy in subsequent years during the 1950s, as Meijer53 has shown, continued to afford recognition to unregistered marriages. They did so because to do otherwise in a jurisdiction in which so many people relied on customary celebration to conclude marriage would be both impractical and unfair to the parties. Indeed, the 50. See, for example, Cheng Zongshu and Ma Chengdong, "Shishi hunyin: yici buying luanyong" ("De facto marriage: a term which should not be used carelessly"). Shehui (Society), No. 6 (1986), pp. 30-31, and Kuang Ke, "Renkou chusheng lifa chuyi" ("My humble opinion regarding population and birth legislation"), Faxue (Jurisprudence), No. 12 (1989), pp. 88-90. 51. See, for example, the case of Mr and Mrs Jian Zhiliang who early in 1991 were fined for the 12 days' "illegal cohabitation" (feifa tongju) that had passed between the celebration in customary form and the formal registration of their marriage. "Women de hunyin shi weifa ma?" ("Is our marriage illegal?"), Fazhi ribao, 6 June 1991, p. 3. See also, for example, the account of a decision to terminate a pregnancy in a marriage celebrated by customary formalities only on the ground that failure to register meant that the mother-to-be was unmarried, in Zhang Meizhan, "Weihun xian yun shi yuan budong hunyin fa" ("Failure to understand the Marriage Law is the sole reason for this pre-marital pregnancy"), Fazhi ribao 22 January 1990, p. 3. 52. Zhonghua suwei'ai gongheguo hunyin fa (Marriage Law of the Chinese Soviet Republic) 1934, in Liu Suping, Hunyin fa xue cankao ziliao, pp. 28-30. 53. Marinus Meijer, Marriage Law and Policy in the Chinese People's Republic (Hong Kong: University of Hong Press, 1971), pp. 178-189. , 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
