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Civil law norms stipulate support for the elderly

XUE NINGLAN | 2022-06-30 | Hits:
Chinese Social Sciences Today

An elderly woman celebrates her birthday with her family. Photo: WENG RONG/CSST

The “duty to support parents,” in Chinese civil law, refers to the duty of a person’s adult linear descendants (including adult offspring and adult grandchildren) to provide for and support their ascendants (parents and grandparents). 

Part 1 (General Provisions) and Chapter 5 (Marriage and Family) of the Civil Code of the People’s Republic of China [which came into force Jan. 1, 2021] established the rules and conditions for obligors and obligees in regard to elderly support. 
Based on China’s national conditions and elderly people’s actual needs, Chapter 2 (Maintenance and Support by Families) of the Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly specified regulated duties for providing for the elderly, taking care of them, and comforting them. 
The two laws work together to make up China’s legal normative system that regulates the rights and obligations for elderly support by relatives. 
The duty of elderly support is stipulated by law, which binds subjects that have certain family relations. The second paragraph of Article 26 states that “adults offspring are obligated to support, assist, and protect their parents.” Article 1067 specified parents’ rights to demand payments of support. Its second paragraph reads: “If children who have come of age fail to perform their duty, or if parents are unable to work or have difficulty in providing for themselves, they shall have the right to demand support payments from their children.” 
There should be a lawful parent-child relationship between adult children who have the duty to support their parents and parents who are supported by their children. Current theories and legislative precedents tend to categorize relationships between parents and children into two types: biological and non-biological. 
A biological parent-child relationship arises upon a child’s birth. Both children born in and out of wedlock are included in this category. A non-biological parent-child relationship arises based on law. It is established based on consent. It is usually established by legal acts such as adoption or remarriage, which results in a foster parent-child relationship and stepparent-child relationship. 
Article 1071 of the Civil Code established the same rights for children born out of wedlock as those born in wedlock. The second paragraph of Article 1072 recognized the lawful parent-child relationship between stepparents and stepchildren who receive care and education from them. Article 1111 confirmed the effect of establishing a parent-child relationship between adopted children and adoptive parents as of the date of establishing the adoptive relationship. Thus it can be concluded that the “adult children” referred to in Article 26 of the Civil Code consist of four types: children born in wedlock, out of wedlock, adopted children, and stepchildren that are raised by stepparents. 
Grandchildren are another subject that may shoulder responsibility for supporting the elderly. The second paragraph of Article 1074 in the Civil Code made it clear that “grandchildren and maternal grandchildren, who can afford it, shall have the duty to bring up their grandparents and maternal grandparents whose children are dead or have no means to support them.” This shows that grandchildren are next in line to provide support. 
The article did not specify whether the “grandchildren” referred to here should be over 18 years old. However, based on legal principles and the logic that links previous articles and subsequent articles, it is safe to presume that the grandchildren who are responsible for supporting their grandparents ought to be adults. 
Grandchildren and grandparents are skipped generation relatives, and they are the closest relationship by blood next only to that of parents and children. To meet the rising basic demands of elderly care as the country’s population ages, China has been transcribing grandchildren’s duty to support their grandparents into law since the Marriage Law of 1980, which stipulates that grandchildren need to support their grandparents under certain conditions. 
The law determines that grandchildren are obligated to provide elderly care, and not only ensure the basic survival of the disadvantaged family members and enhance family-based elderly care, but also fill in social security gaps. Article 14 in the Law on Protection of the Rights and Interests of the Elderly stipulates that “the supporters referred to here, are the sons and daughters of the elderly, and other people who are under the legal obligation to provide for the elderly.” This demonstrates the strong connection between different laws within civil legislation. 
As China’s socioeconomic development continues and people’s living standards rise, elderly care provided by relatives has also gone beyond financial provision, to life support, and caring for their mental well-being. The two laws mentioned above work in tandem to regulate the principles and specific rules in this duty of supporting the elderly. They highlight the unique value of elderly care, based on relatives, against the backdrop of China’s social security system in the new development stage. 
The duties can be defined in a narrow sense or a broad sense. In a narrow sense, supporting the elderly refers to economic provision. It is based on the second paragraph of Article 1067 in the Civil Code, which requires children to provide a certain amount of payment to support their parents under certain conditions. 
In a broad sense, the duties include providing for, taking care of, and comforting the elderly, as is regulated in the first paragraph of Article 14 of the Law on Protection of the Rights and Interests of the Elderly. 
This article extends the duties from simply material terms to caring for the elderly in terms of their daily life and mental health. The law makes “come back home more often” a legal duty. It answers to the call of population aging by strengthening relative-based elderly care, and is a way to ensure seniors’ right to live. Even though forcible execution does not apply to judicial adjudications like this, this law still demonstrates the social values inherent in Chinese law, and can work to urge obligors to fulfill their duties. 
Fulfilling responsibilities 
The law states that during the existence of an elderly-support relationship, the responsibilities of elderly care can be fulfilled based on an agreement reached among more than one obligors, with the consent of the care-receiver. 
Nevertheless, no one can be exempted from the duty through agreement, nor can the duty end when the care-receiver’s marital status changes, such as changes caused by a divorce, remarriage, or death of one’s spouse. In addition, the fulfillment of the duties is mandatory, with no additional conditions. The obligor cannot deny his/her duty to support the elderly, neither by renouncing his/her inheritance right, nor any other reason. Based on Paragraph 2 of Article 1067 and Paragraph 2 of Article 1074, the duties of adult children and grandchildren to provide for their parents or grandparents are all conditional. 
For adult children, two conditions must be met for the duties to arise. First, if the parents lack labor capacity or have difficulty providing for themselves. “Lacking labor capacity” refers to those who cannot engage in either physical or non-manual work due to old age, illness, or disability, which results in either partially or completely losing their labor capacity. To “have difficulty providing for themselves” refers to those who cannot make a living with their own income or property. 
When either of the two conditions is fulfilled, the parent has the right to demand support. For instance, the children would still legally need to fulfill their support payment obligations when their parents can live on their own income or property but are lacking labor capacity. Meanwhile, the adult children should have the ability to provide for the elderly. This requires them to be both financially capable of shouldering the responsibility and with full capacity for civil conduct. 
As the obligors second in line to care for the seniors, grandchildren only need to fulfill their duties of caring for their grandparents when their parents are unable to do so. Thus, the prerequisite for grandchildren to provide for is when their grandparents’ children are dead or have no means to support themselves . 
In the meantime, the grandparents need to be provided for. Although the second paragraph of Article 1074 of the Civil Code expressed this point explicitly, this condition can be concluded in reference to the conditions for adult children. 
Furthermore, the grandchildren must be adults who can afford it. It means the adult grandchildren should first provide for themselves, the family members they are legally required to foster (spouses, underage children, and parents). They only need to provide for their grandparents if they still have financial capability left after ensuring that those who rank first in the hierarchy have a reasonable standard of living, education, and medical care. If more than one grandchild can afford it, they should split the duties as obligors of the same lineage, based on their economic conditions. 
Based on legislation in countries and territories that use a civil law system, there are generally two ways to provide for seniors. The first way is by living together, meaning that the obligors and obligees live together, while the former care for the latter. The second way is through payment installations, delivering material goods, regular visits, and taking turns to care for the elderly. China’s Civil Code has not specified the actual methods, and in judicial practice, judges usually make verdicts based on subjects’ appeals while considering both methods. 
As family structure changes in China, it has become common for adult sons and daughters, and grandchildren, not to live with their parents and grandparents. The most direct form of support they can provide to their parents and grandparents is to pay regular alimony to their dependents. Alimony includes not only maintenance for the dependent, but also other expenses such as medical and nursing expenses. The person responsible for supporting a parent or grandparent who is unable to take care of himself/herself shall be responsible for the care of the parent or grandparent. If he/she cannot provide the care, he/she should entrust someone else or an institution to do so according to the wishes of the elderly. 
It is not only a traditional Chinese virtue for adult offspring and grandchildren to support their parents and grandparents, but also an obligation they have under the law. The current system of supporting the elderly in China is based on the Constitution, with the Civil Code as the core and the Law on the Protection of the Rights and Interests of the Elderly as the supplement. With the development of society and an ageing population, in the future, the civil law’s elderly support system should go hand in hand with the welfare system and state social security system and play a synergistic role in safeguarding livelihoods of the elderly. 
Xue Ninglan is a research fellow from the Institute of Law at the Chinese Academy of Social Sciences. 
Edited by WENG RONG