Family court comes to China

imgresAs highlighted in a December,2015 post on this blog, and as Supreme People’s Court (SPC) Vice President Shen Deyong announced on 11 May, family courts are coming to China, or at least 100 pilot projects for them.  Family law cases have been heard within civil divisions of local courts, but there has been dissatisfaction with the way there are being heard.  In 2015, 1,733,000 marriage law cases were heard and about 84,000 inheritance cases.

Family law issues reflect the complexities of Chinese families today:

  • Divorce in major cities often touches on the rights to real estate whether debts are debts of one spouse or of the marriage;
  • Custody and maintenance are issues, particularly when maintaining an expensive life style is involved;
  • In rural areas, bride price and marriage by local customs rather than official registry is an issue.

Justice Shen stressed that family is the basis of society (echoing Confucius). The Women’s Federation, Ministry of Civil Affairs, Ministry of Justice, and Central Political Legal Committee were involved in this initiative. This reform has been piloted on a smaller scale in Guangdong province.  District courts in Shenzhen and Zhuhai have been early stage pilots.   The SPC issued a document to support the initiative which has not yet been publicly released (Notice of the SPC concerning some courts initiating pilot reform work in family court trial methods and work systems 最高人民法院关于在部分法院开展家事审判方式和工作机制改革试点工作的通知). [Update–the document was eventually released–available here.]

This is an area in which the Chinese courts, including Supreme People’s Court is looking to jurisdictions outside mainland China (i.e., including the United Kingdom, Australia, Taiwan, Japan, and South Korea) for concepts that may be used in China.  Hong Kong law has not been mentioned as a model from which the mainland can transplant concepts, because, as this recent article published by a member of the University of Hong Kong Law Faculty details, Hong Kong family law and family law procedure is many years behind developments in Commonwealth countries, and it is an area in which Hong Kong’s executive led government has delayed introducing comprehensive legislation.  Ironically, in March, 2016, the SPC had discussions with Hong Kong’s Secretary of Justice on the issue of the recognition of judgments in the area of marriage and related issues.

Scope of the pilots:

  • matrimonial cases and related cases, including divorce, annulment, revocation of marriage;
  • custody, child support fees, property division after divorce, etc; maintenance disputes; paternity cases, including parent-child relationship to confirm or deny paternity;
  • adoptive relationship disputes;
  • cohabitation disputes, including the division of property during cohabitation, children born out of wedlock, and other dependents;
  • inheritance disputes.

The pilots will promote:

  • mediation as a way of resolving disputes;
  • personal appearance of parties in court;
  • putting the interests of the child first.

Issues with family cases that the Shenzhen judges have highlighted:

  • family law is not taken seriously as an area of law;
  • investigators are needed to support the judges;
  • lack of coordination with other authorities involved in family law issues;
  • burden of proof needs to change in family law cases, because otherwise it is difficult for the weaker party (generally the woman/elderly) to prove her case;
  • court performance indicators make it difficult to handle family law cases properly;
  • the courtroom set up must be changed to better accommodate family law disputes;
  • questions on handling family law issues that impinge on public policy/morality, such as inheritance by mistresses.

If the Confucian value of family as the basis of society is to be taken seriously the Chinese court system needs to show it by its actions. And the Chinese legal system will need to face the issue that family includes people who are gay/lesbians/transgender.

 

 

 

Year end bonus from the Supreme People’s Court

images-1As highlighted in the last blogpost, the Supreme People’s Court (SPC) is issuing all sorts of documents in the rush towards year end, far outpacing the time available to the Supreme People’s Court Monitor to analyze them.   Some of the recent developments that merit closer scrutiny:

  • more model/typical family law cases (incorporating the ones highlighted in an earlier blogpost) and with many more involving domestic violence and cohabitation issues;
  • 19 model/typical contract cases, including several private lending cases, real property cases, etc.
  • 14 model/typical food and drug crime cases, including one involving a supermarket (I had written this on food safety raids earlier this year;
  • Five model/typical cases of refusing to implement court judgments/rulings;
  • Two model/typical cases on non-payment of wages (this is an issue of high priority for the government;
  • Ten model/typical fraud cases;
  • Updated sentencing guidelines for a broad range of criminal cases, including rape, picking quarrels, and fraud;
  • Guidance from the head of the #2 criminal division on principles for applying the sections of the recent amendment to the Criminal Law on bribery and corruption (in which is likely to be incorporated into a future judicial interpretation);
  • An authoritative article by the SPC’s research office on the new terrorism crimes set out in the recent amendment to the Criminal Law;
  • approval by the SPC judicial committee (in principle) of the first judicial interpretation of the Property Law, which means most provisions are finalized, but the final draft is not set.  A recent draft discussed by the Civil Law Society was published recently. Several provisions address the issue of a “bonafide purchaser.”

 

Some typical Chinese family law cases in 2015

dd9a8f4c1a39797ea5a7e4843c8a2724 (1)Each month (as highlighted this earlier blogpost), the Supreme People’s Court (SPC) issues typical cases at a press conference. In November, family law cases were the center of attention for a change and were briefly reported by the South China Morning Post.

This month’s typical cases were selected from the Beijing, Shandong, and Henan courts and are aimed at educating the general public rather than legal professionals.  The cases, statistics, and comments from the Supreme People’s judiciary  give a glimpse into the social, economic, and cultural changes that have affected Chinese families over the past 20 years and reflect the differences between rural and big city life.

Statistics

Judicial statistics is one of the areas slated for reform by the Court, which has the potential to improve (or not) the situation for analysts of the Chinese court system.

  • 4,000,000 family law cases have been heard in the past year and 10 months. President Zhou Qiang reported earlier this year that  1,619,000 family law cases were heard in 2014, accounting for about 30% of civil cases, which would mean that over 2 million cases had been heard in the first 10 months of 2015 (assuming the cases are classified the same way in both years).
  • 124981 family law cases have been heard in the Shandong courts this year, constituting about 24% of all civil cases.
  • In the Beijing courts, 38, 619 first instance family law cases were heard in 2014.

Issues for Chinese judges

The press release hinted at some of the difficult issues facing Chinese family law judges nationally, which are many of the same facing their counterparts in Shenzhen:

  • Division of property when spouses divorce, which means both division of family home(s) and family business(es).  Parents often provide some or all of the funds for the home, before marriage, and the controversial rule set out in the #3 Marriage Law Interpretation
  • Child custody;
  • Divorce after a second marriage.

Divorcing spouses are increasingly antagonistic, making it difficult for judges to mediate a settlement, which is the preferred resolution for Chinese judges.

Summaries of some of the 30 typical cases

Must engagement gifts be returned? A case from a rural court in Shandong

Zhang and Zhao were introduced by Zheng, and became engaged. Zhang gave Zhao 40,000 RMB cash, four rings, and other gifts as betrothal gifts (彩礼).  The couple did not marry, and Zhao refused to return the cash and gifts. Zhang sued in the Jining District Court.  At trial, Zhao returned the 4 rings.  The Jining Court ordered Zhao to return the cash but not the gifts.

The SPC commentary noted that although the cash and other items are in form a gift, the legal consequences are different, and according to the #2 Interpretation of the Marriage Law, the gifts must be returned. Article 10 (1) of that interpretation addresses this situation: if the court finds in pleadings a demand for the return of the betrothal gifts given to the other party according to the traditional practices because the parties fail to register their marriage, the people’s court shall uphold the demand.

Concealing property from ex-spouse (Beijing)

Sun and Li divorced in 2004.  The arrangements the couple made were that the wife Li would have custody of the child, the formerly state-owned housing would belong to the wife, and the business, cars, etc. would belong to the husband, who would provide alimony and child support.  In the process of demanding child support from Sun in 2014, Li discovered that Sun had bought property during the marriage, but had concealed that fact from her. She went to court to demand that ownership of the apartment be transferred to her name. Sun said that the apartment was bought when the couple was living apart, he had told her, the divorce settlement provided that the business, cars, etc. belonged to the husband and besides the statute of limitations had lapsed years ago.

The Changping District court decided that because the apartment had been bought during the marriage, it was joint marital property and Sun could not provide credible evidence that Li knew of the property during the marriage.  Therefore the statute of limitations argument failed. The court decided that ownership of the apartment should remain with Sun, but that Li was entitled to half of its market value, or 1,400,000 RMB.  The couple appealed to the #2 Beijing Intermediate Court which upheld the lower court.

The SPC commented that because traditional attitudes of marriage for life have changed, there are more and more divorce cases.  In this case,  because Sun concealed the purchase of the apartment, under Article 47 of the Marriage Law that when the court partitions the property, it could allocate less or no part to Sun.

Does the non-custodial parent of a child born to an unmarried couple have visitation rights? (case from a rural Henan court)

Wang and Chai were introduced and subsequently had a wedding celebration according to local customs, but never formally registered their marriage. They lived together and Chai gave birth to little Wang.  Thereafter the couple separated.  The couple went to the Xun County court to resolve their disagreements about the child.  The court decided that Chai should have custody of the child, until the child is old enough to express her preferences.  A month later Wang went back to court to demand visitation rights.

The Xun County court relied on Art. 38 of the Marriage Law, concerning visitation rights of the non-custodial parent in divorce to decide that the father could visit the child the first Sunday of each month from 9 am to 5 pm.

The SPC commented that visitation rights are a basic legal right of a non-custodial parent to have contact, visit, and live together for short periods, but visitation must be done in a way that does not affect the normal life and studies of the child.

Do the elderly have the right to support from their children? (a Beijing case)

Seventy seven year old Mrs. Liu was in poor health and in financial difficulties.  She sued her two children in Beijing’s Xicheng District Court to require them to provide her support in the amount of 900 RMB monthly.  The daughter said she had no income and the son said his after- tax income was only 6500 RMB and refused.  The court ordered the son to pay 800 RMB per month and the daughter 500 RMB (on the grounds that based on her work history she must have income).

The SPC commented that grown children have the legal duty to support their parents [under the Law on the Protection of the Rights and Interests of the Elderly], but the amount will depend on the elderly person’s cost of living, the health of the elderly person, and life style, and if the elderly person has several persons to look to, the amounts each will need to pay in support will depend on each person’s financial situation.

 

 

 

 

 

 

 

 

 

 

Advocates for the elderly coming soon to Chinese courtrooms?

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circuit court protecting elderly rights (old man v. son)

In the middle of April, 2015, the Chinese courts carried a report on the issuance of a policy document (the full text is not yet available) by the Ministry of Justice and the National Committee for the Ageing (NCA) (a joint State Council/Party organization, as the Chinese version of the NCA’s website states) on establishing a system of lawyers and legal aid for the elderly.  Issues relating to representing the elderly in China mirror those in other parts of the world.

Although the Supreme People’s Court was not one of the institutions that issued the policy document, the national court system is affected by profound changes to Chinese society, including the greying of Chinese society, its urbanization, and other factors.  These cases are considered by the courts those relating to people’s livelihood, as discussed in previous blogposts.

The issuance of this document relates to Article 55 of the 2012 Law on the Protection of the Rights of the Elderly, which calls for elderly people to obtain legal assistance if they cannot afford a lawyer needed to defend their rights. The Chinese courts are facing a major increase in cases involving the elderly, both civil and criminal, involving psychological and physical abuse, as a study done by the Suzhou Intermediate Court illustrates.  It is likely that the Ministry of Justice and NCA did a more comprehensive study on the need for advocates for the elderly before issuing this document.

The Suzhou study, summarized in Legal Daily in the fall of 2014 gives an update concerning elderly-related disputes in wealthy Suzhou, where the elderly population has reached 23%:

  • From 2011 to 2013, the Suzhou courts accepted 1,100 civil cases involving the elderly. Those increased rapidly over the 3 years in question, because in 2013 586 cases were accepted, an increase of 102.77% over the previous year. The cases related to support, divorce, inheritance, and division of property rights.
  • in 2013, there was an 83% increase in civil cases involving the right to the division of property rights arising from land acquisition, with over 80% of the property division cases arising in rural areas;
  • Over 90% of the support cases arose in rural areas;
  • In 2013, there was a 183% increase in inheritance disputes involving the elderly;
  • In over 70% of the cases involving division of property rights from land acquisitions, elderly were forced to live in bicycle sheds, garages, or other unfavorable conditions.
  • In many cases, elderly are shunted back and forth between their grown children, who were fighting over valuable property rights held by elderly parents.

The domestic violence policy document issued in March, 2015, addresses criminal law domestic violence issues against the elderly, which are also rampant, as discussed in this earlier blogpost.

The policy document calls for a one month movement in October to focus on the establishment of probono legal service centers for the elderly.  A one month movement appears inadequate for the breadth and depth of this important social problem, which reveals that Confucian values concerning support and care for the elderly have landed in the dustbin of history in too many cases.  We look forward to hearing more detailed reports from law firms and NGOs on how the rights of over a hundred million Chinese elderly (anticipated to more than double by 2050) can be better protected.

Shenzhen courts steer the way in divorce and shadow banking law

u=2655505232,2779536896&fm=21&gp=0 The Shenzhen courts, dealing with the “new normal” in China’s social and economic changes ahead of the rest of the country, often find current legislation and Supreme People’s Court interpretations inadequate to deal with the issues that come before them. Divorce law and shadow banking (loans made outside the formal banking system) are two types of cases inundating the Shenzhen courts (and yes, there is a connection).

At the end of last year, the Shenzhen intermediate court issued local court guidance (with an accompanying explanation–these are not “interpretations of law”), binding only on the Shenzhen courts, on two important issues:

In Shenzhen, which is wealthy and where women are relatively rights conscious (at least in divorce), the local courts found that existing rules failed to deal with the issues that came before them regularly.Some of those issues include:

  • marital property (particularly rights to real property);
  • the business that a couple may have built up together;
  • children born outside the marital relationship, and
  • issues relating to cross-border marriages.

As in so many areas of Chinese law, legislation lags behind social reality.  The 2011 interpretation by Supreme People’s Court of the Marriage Law, as it relates to marital property, has been controversial both inside and outside of China, as highlighted by many articles and books addressing the issue because it has meant that in divorce, women often lost possession to home(s) to which they or their parents had contributed substantial funds.This has been particularly true in Shenzhen. The local intermediate court highlighted that over 80% of the divorce cases that are heard locally involve disputes over real property.   In divorces, women have continued to argue that they should be awarded possession of the home.

Another issue leading to disputes in and out of the courtroom is the practice of some courts. when dealing with divorces, to split ownership of the family business. The guidance directs judges to consider the family law issues only, and have the division of the business considered in separate proceedings.  These rules also contain provisions relating to Hong Kong, where there are many cross border marriages and couples whose lives and property  crisscross  the border. The court guidance, besides setting out new legal rules, provides a deep dive look into what goes on in many local marriages, judging from the rules relating to children born outside of the marital relationship.

banks turn off funding tap, shadow banking comes

banks turn off funding tap, shadow banking comes to the rescue

Shadow banking loans, which the Supreme People’s Court has finally recognized to be valid (if they meet certain conditions) constitute about 20% of civil disputes in the Chinese courts, according to President Zhou Qiang’s report to the NPC, and the numbers are even greater in Shenzhen.  In the court in the business district of Futian, for example, the statistics are as follows:

  • 2012: 1153 cases;
  • 2013: 1627 cases
  • first half of 2014: 976 cases.

The court guidance in substance an answer to FAQs of the Shenzhen courts on  the following questions (and many more):

  • what if the loan relates to a gambling debt?
  • What if one spouse lends money to a third party without informing the other spouse?
  • How can shadow banking be distinguished from the crime of illegal fund raising?
  • What if the legal representative of a company loans out company money in his own name?
  • What are the ceilings, if any on interest, penalties and other fees?

We can expect that the Supreme People’s Court will be monitoring the success of these rules in practice when issuing its next judicial interpretation in these areas.  And with the Supreme People’s Court Circuit Court (Tribunal) located in Shenzhen, it is likely that discussion of these issues occurs from time to time behind the scenes.

Supreme People’s Court +3 attack domestic violence

Unknown-2On 4 March 2015, the Supreme People’s Court hosted a press conference, attended by officials from the Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice, to announce their jointly drafted and long-awaited policy document (translation  here) on domestic violence, on which the Supreme People’s Court took the lead. (The Domestic Violence Law has not yet been promulgated. The intention is to create an effective anti domestic violence system, incorporating principles common to other jurisdictions as well as international domestic violence legislation. The United Nations, the American Bar Association, the Australian government, and many other international and national institutions and organizations have worked with the Supreme People’s Court and other Chinese institutions for many years on these issues, to assist the Chinese institutions to understand domestic violence law and practice elsewhere in the world.  This blog has highlighted earlier work by the Supreme People’s Court on domestic violence. Some of the highlights include:

  • Domestic violence includes violence between family members and others who live together in relationships, such as guardianship,support, foster care,  cohabitation (it intends heterosexual relationships and may (or may not include homosexual relationships).
  • The authorities need to intervene timely and efficiently, to protect the safety and privacy of victims;
  • Collect evidence of domestic violence in a timely manner, including objects on site, undertakings by the victim, witness statements, as well as from the community obtain medical records, photos, videos, and other evidence.
  • Respect the intention of the victims;
  • Provide special protection to juveniles, the elderly, the disabled, pregnant and nursing mothers, and the severely ill through legal assistance and other measures;
  • Encourage the community to report cases, including friends, neighbors, coworkers, hospitals, schools, kindergartens, and other institutions and entities;
  • The authorities (public security, procuratorate, courts) must protect the privacy of persons making accusations or reporting domestic violence who do not want their identity revealed;
  • The authorities must make arrangements to ensure the health and safety of victims;
  • If the accused aggressor is permitted to be out on bail, the aggressor can be order to stay away from the victim and juvenile children;
  • It sets out principles concerning the abused spouse/partner defense;
  • Cases must be quickly and efficiently investigated, accepted, and transferred (to avoid the “buckpassing” that occurs, to the detriment of victims);
  • In less serious cases, the authorities should make use of undertakings by aggressors not to commit the offense, apologizing to the victims, compensating the victim, and other non-criminal measure;
  • Courts should use measures to protect the safety of victims and other dependents, such as ordering the aggressor to leave the home, forbidding the aggressor from approaching the victim, and other protection orders.

The Supreme People’s Court also issued model/typical five domestic violence cases to illustrate issues such as:

  • domestic violence includes elderly violence;
  • domestic violence includes violence to children;
  • domestic violence includes violence to persons living together who are not married;
  •  domestic violence includes maltreatment to the point of causing the victim to commit suicide.

Comments

Many of the provisions of the opinion address outstanding problems that the Chinese justice system has in dealing with domestic violence–disregarding it as a “family matter,” revealing the identities of those who report it, recognizing beatings,forced  overwork, mental and physical torture as abuse.

This opinion is intended to deal with the many domestic violence issues that have arisen and which have caused a great deal of public controversy.  Implementing it will require a great deal of hard work, including a change in attitude among many in the police, prosecutors, and courts.

Comment now on China’s draft Anti-Domestic Violence Law

Unknown-2After at least 15 years of pressure by women’s groups, lawyers, and publicity in China, as well as by the international community, the draft Anti-Domestic Violence was issued by China’s State Council Legislative Affairs Office on November 25. It follows many years of academic and professional exchanges and international conferences on domestic violence legislation.  The timing may be to coincide with the UN’s Days of Activism Against Gender Violence.

The comment period is one month.  The draft is available here.  An English translation of the draft and official explantion has been prepared by Chinalawtranslate.com (thank you to the team). The translation of the draft is available here and the explanation here. The draft contains important content, including:

  • definition of domestic violence;
  • establish a domestic violence reporting system
  • protection orders;
  • requirements for courts in matters involving domestic violence;
  • local government establishment of domestic violence shelters.
  • Unmarried couples are not covered by the draft law (but by other legislation).  (Drafts of local legislation have also started with this position.  In Shenzhen, the Procuratorate advised against this, as mentioned in this earlier blogpost).

Comments may be made electronically at: fjtbl@chinalaw.gov. cn; or by mail at: Box 2067, Beijing, PRC 100035, attention Anti-Domestic Violence Law Consultation; (北京市2067信箱(邮政编码:100035),请在信封上注明“反家庭暴力法征求意见).

After the State Council finalizes the draft, it will submit it to the National People’s Congress (NPC), for further discussion and possibly more public consultation.  It appears passage of the law will come in 2015.  Once its passed, further legislation will be needed, including a judicial interpretation by the Supreme People’s Court, to address the evidentiary and other issues in the law.  Earlier posts on domestic violence are linked here, there, and there.  Local governments have started drafting their own legislation, including Shenzhen and Guangdong.