Socialist, Chinese, or Liberal? An Introduction to Chinese family law – Part 3: Modern China

Introduction

In this third and final article of the series we will introduce the family law of the Twenty-First Century People’s Republic of China. We will look at the relationships between spouses and between parents and children, noting the comparisons with Imperial and ancient China and with the USSR as we go. By the end of this part we will then be able to answer the question posed in the first article, the question of whether modern Chinese family law can truly be described “socialist with Chinese characteristics.”

The article will then conclude that the family law of modern China is indeed a hybrid, as “socialist with Chinese characteristics” would suggest. However, this hybridity is actually a mixture of three elements: socialism, traditional Chinese Confucianism, and modern Western liberalism. Additionally, while “socialist with Chinese characteristics” suggests that socialism would be the dominant influence, we will conclude that this is not the case. Instead the family law of the Twenty-First Century PRC is perhaps better described as “Chinese with socialist and liberal characteristics.” Interestingly, the recent reintroduction of Confucian elements into the modern Chinese family law echoes the aforementioned reintroduction of Orthodox Christian elements into the family law of the USSR under Stalin. Indeed, per Berman, “A study of Soviet family legislation from 1917 to the present, especially in the light of new decrees of 1944 and 1945, shows that the restoration of certain pre-revolutionary values concerning law and the family has been achieved without giving up important social ideals for which the Revolution has consistently stood.” [1]

Since the turn of the Twenty-First Century the PRC has introduced a new marriage law, [2] a new set of regulations on marriage registration [3], and three judicial interpretations of the new Marriage Law, in 2001, 2003 and 2011. These laws and interpretations will form bulk of the basis of the analysis of modern Chinese family law.

The Relationship Between Spouses

As previously, the first aspect of the relationship between spouses to be analysed will be the marriage relationship. In doing this, we will look at the formation, nature and dissolution of marriage.

The Formation of Marriage

The first point to note about marriage in modern China is that it is heavily regulated. This is an echo of the traditional Chinese attitude towards marriage, as a public institution where external regulation was common. This contrasts starkly with the early marriage law of the USSR which provided for almost total freedom of marriage.

A key piece of evidence for this regulatory approach is the requirement of the registration of marriage. Per Article 8 of the 2001 Marriage Law: “The man and woman who apply for marriage shall go to the marriage registration authority in person to get registered.” [4] This rule is enforced by the courts, who are strict in holding that unregistered marriages are not legal marriages. To see this, consider the case of Qingjian v Zhou & Zhou. [5] Here it was held that no marriage existed despite the fact that the parties in question had gone through a wedding ceremony and had lived together as husband and wife for multiple months.

Additionally, just as in Imperial China, there are age limits on the parties entering into marriage. In modern China, Article 6 of the Marriage Law 2001 dictates “No marriage may be contracted before the man has reached 22 years of age and the woman 20 years of age.” [6] Further, just as with the requirement for registration, where this legislation is breached the marriage is invalid. Indeed, per Article 10, “The marriage shall be invalid if.. one of the parties has not reached the statutory age of marriage.”[7] Interestingly the discrepancy in the age requirements for men and women entering marriage also mirrors Imperial China, although the gap is less significant than the aforementioned 10 years in Imperial China.

The regulations on sickness before marriage are further evidence of the normality of state involvement in marriage. Per Article 7 of the 2001 Marriage law, “No marriage may be contracted under any of the following circumstances: if the man or the woman is suffering from any disease which is regarded by medical science as rendering a person unfit for marriage.” [8] As above, the result of a breach of this regulation is that “... the marriage shall be invalid...” [9]. This provision is a rough echo of the past, specifically of the fact that certain sicknesses formed a ground of divorce in ancient China. Furthermore, it also serves to illustrate the degree of state involvement in marriage, something which itself is a mirror of Imperial China, far more so than the socialist states of Cuba or the USSR.

While the following regulations, on coercion and bigamy, also illustrate the heavily regulated nature of marriage in modern China, they are the exception as their source appears to be socialism, not Confucianism, as can be seen in the fact that very similar provisions appeared in the post-revolutionary USSR and not in ancient China. Indeed, collectively they purport to illustrate the influence that socialist thinking, on emancipation and equality, has had on contemporary China.

Article 5 of the 2001 Marriage Law requires that “Marriage must be based upon the complete willingness of both man and woman. Neither party may use compulsion on the other party, and no third party may interfere.” [10] Similarly, Article 11 dictates that annulment is the consequence of any such coercion. [11] This stands in unambiguous contrast to Imperial China where marriage was a contractual arrangement between the families often conducted by the parents and where the role of matchmakers was significant. Instead this provision plausibly stems from socialist views of the emancipation of women. While there was no direct mirror provision in the USSR, the presence of divorce on demand has a similar effect, as parties coerced by parents into marriage may then simply divorce one another.

Article 10 of the 2001 Marriage Law states “the marriage shall be invalid if either of the married parties commits bigamy” [12]. While it is true that ancient China formally prohibited bigamy, it is argued above that the widespread practice of concubinage allowed a degree of polygamy. Instead this better mirrors the family law of the USSR; as noted above Berman highlights monogamy as the first of the key features of Soviet family law. However, it is worth remembering that monogamy was the subject of much of Engels critique of the family. Thus, it is less clear that the prohibition of bigamy is a result of the influence of socialism. Instead it may be the product of another influence altogether, perhaps even western liberalism.

The prohibition of incestuous marriage can be seen in ancient China, modern China, the USSR and many other states. As such its origin is perhaps harder to deduce. Nonetheless it is still notably present in the regulations on marriage and helps to further illustrate the degree of regulation involved in marriage. On this, Article 7 of the 2001 Marriage Law requires that “No marriage may be contracted under any of the following circumstances: if the man and the woman are lineal relatives by blood, or collateral relatives by blood up to the third degree of kinship.” [13]

Thus the dual influences of Confucian Imperial China and the Socialism can be seen in modern Chinese family law.

The Nature of Marriage

As noted above, one of the key features of modern Chinese family law is the equality of the spouses. In terms of legal regulation, this is clearly spelt out. The 2001 Marriage law provides that the “Husband and wife shall have equal status in the family” [14], that “Both husband and wife shall have the right to use his or her own surname and given name” [15], and that “Both husband and wife shall have the freedom to engage in production and other work, to study and to participate in social activities: neither party shall restrict or interfere with the other party.'' [16] Thus, the equality of spouses can be seen both as a theoretical principle and as a basis for other substantive rights.

The corollary of this equality of rights would be an equality of duties. Perhaps unsurprisingly this is also present in the 2001 Marriage Law; for example in Article 16, which states that “Both husband and wife shall have the duty to practise family planning.” [17]

This principle of spousal equality is almost certainly a product of the influence of socialism rather than Confucianism. Indeed a tenant of ancient and Imperial Chinese family law, one largely paralleled in the pre-enlightenment West, was that the family was based on a fundamental hierarchy of age and gender. In contrast the writings of the socialists are replete with references to marital hierarchy and the emancipation of women. The principle can also be seen in the law relating to the dissolution of marriage.

Dissolution of Marriage

The law relating to the dissolution of marriage in modem China again shows joint influences of socialism and Confucianism. It suggests that “socialist with Chinese characteristics” is a plausible description of modern Chinese family law. However, on closer inspection, the Chinese characteristics will again appear to be more numerous and more influential than their socialist counterparts.

The dual influences can be seen in the grounds and procedure for divorce. The socialist influence can be seen in the presence of divorce by registration, a no-fault divorce based on mutual consent, something that was also present in the early family law of the USSR. Indeed, Article 31 of the 2001 Marriage Law states that: “Divorce shall be granted if husband and wife both desire it...” [18] The use of the word “shall” shows that the state must issue a divorce where both husband and wife desire it. This is confirmed by Article 10 of the Marriage Registration Regulations, which states that: “Where mainland residents voluntarily divorce, the husband and wife shall appear together for divorce registration...” [19] This situation reflects the socialist thinking detailed above that marriage is monogamous but not necessarily permanent.

However, the crucial distinction to be drawn is that in the early USSR and in the writings of the socialists, the continuation of a marriage was conditional upon the consent of both parties; the consequence of this being the prevalence of unilateral no-fault divorce. In contrast, the continuation of a marriage in the modern PRC is conditional upon the consent of either party, unless one of the grounds for unilateral divorce is met. This is a significant distinction as no-fault divorce is then not available to either party without the consent of the other. Indeed, this distinction draws the law on the grounds of divorce outside of a mere replica of socialist law on the matter and indicates the presence of other influences. This form of no-fault divorce bears remarkable similarity to the “ho-Ii” in the Tang code. [20] This suggests that what purports to be an example of socialist influence on modem Chinese law is perhaps more likely to stem from Imperial China.

The presence of traditional Chinese influences on divorce law can be seen most clearly in Article 32 of the 2001 Marriage Law which states that “In dealing with a divorce case, the People's Court shall carry out mediation...” [21]. Thus where one party has applied for the unilateral dissolution of a marriage, mediation will be conducted. As mediation was a key feature of ancient and Imperial Chinese law, its presence in the family law of the modern PRC indicates the continuing influence of traditional Confucian thinking.

This influence is further evident in the grounds for unilateral divorce. Under the 2001 Marriage Law there are only six possible grounds for unilateral divorce. [22] These are: bigamy, domestic violence, repeated gambling or drug taking, two years of separation, where one party is missing, and the rather vaguely worded “other cases which lead to the shattering of affection between husband and wife.” [23] The prohibitions on bigamy and domestic violence are, as noted above, present in most modern societies, as they were in soviet Russia and in Imperial China. As such it is difficult to ascertain their origin in modern China. That the Law specifically mentions repeated gambling or drug use as a ground of divorce is certainly an echo of Imperial China, where such practices where thought to dishonour a family. Interestingly the ground of the “shattering of affection”, while somewhat nebulous, also bears remarkable similarity to the “breaking of the bond” ground of divorce in Imperial China.

Traditional Chinese influence can also be seen in those situations where a divorce will probably not be granted. Under Article 34 of the 2001 Marriage Law “A husband may not apply for a divorce when his wife is pregnant, or within one year after the birth of the child.” [24] Indeed, Chinese courts are reluctant to grant divorce to parents of young children as can be seen in the case of Mo v Li [25]. Here divorce was denied on the grounds that “Their son was still very young and, in view of the facts found in the action, needed their care and love very much. The divorce of both parties would bring harm to their son.” This reflects the traditional Confucian view of the family, not the individual, as the fundamental unit of society. This view is also seen in the Article 34 provision against divorcing a soldier on active service. [26] Together these restrictions show that potential harm to the family unit or society writ large is a ground for the refusal of divorce.

However, it would be wrong to conclude here that socialist influence on modern Chinese family law is minimal. It is perhaps best seen in the formal equality of spouses post-divorce. For example, on the question of rights and duties towards a child: “both parents shall still have the right and duty to bring up and educate their children.” [27] Similarly in the question of property division, Articles 17 [28] and 18 [29] of the 2001 Marriage Law state that the overwhelming majority of property belonging to the couple is to be considered joint property; with the notable exception being property belonging to one party only prior to the marriage, and which has not been put into joint names. Further still, per Article 20, the “Husband and wife shall have the duty to maintain each other.” Thus both are responsible for the life-long financial security of the other.

Yet it is unclear how different the situation with respect to custody or property division is from many liberal Western societies. This suggests that part of the influence behind the equality provisions may be a degree of liberalism as well as socialism.

Perhaps the most notable departure from the principle of equality is that “in a case where the husband and wife jointly rent a house or a room, the wife's housing shall, at the time of divorce, be solved according to the principle of showing consideration for their child and for the rights and interest of the wife.” [30] The effect of this provision can be seen in the case of Liu v Zheng [31] where the wife was granted the family home, in its entirety. Yet this departure from equality further suggests the presence of Western liberal influence, as somewhat similar principles exist in England and the USA.

The dual influences on marriage law in the PRC can be seen in the fact that it exhibits many of the features of family law in Imperial China but with an emphasis on spousal equality. For example the grounds for divorce in modern China are remarkably similar, for both parties, to the grounds on which a husband was able to divorce his wife in Imperial China. Further, as noted above, the source of this focus on spousal equality may indeed be socialism: however, it may also be western liberalism. This again suggests that perhaps family law in modern China is better thought of as “Chinese with socialist and liberal characteristics.”

The Relationship Between Parents and Children

While not as fleshed out as the “Li” in Imperial China, the presence of requirements of filial piety is notable in the obligations of parents towards their children and, crucially, vice versa. It is particularly interesting to note the reintroduction of these values in the light of their abandonment under Mao. Indeed per Chow, the early “Chinese communists... found filial piety ideologically repulsive.” [32] Just as Leninist Russia was keen to make a complete break with the past Orthodox Christian system so too was Maoist China originally intent on making a complete break with traditional China.

The requirement of parents to care for their children has already been touched upon above, with respect to the duty of both parent s to look after children during the marriage and after any divorce. However, the legal duties are specified further in the Protection of Minors Law.[33] Upon examination it is clear that the duties imposed on parents with regard to their children reflect those imposed on parents in the USSR. For example, the Article 10 requirement that parents instil in their children “sound ideology” [34] bears striking resemblance to the requirement on parents in the USSR to prepare “children for active participation in the building of a communist society.” [35]

However, while the requirements of parents to care for their children mirror those of the USSR, the requirements on children to look after elderly parents is an example of Confucian filial piety. This is best illustrated in Article 18 of the Law on the Protection of the Rights and Interests of the Elderly, which states that “Family members shall care for the mental needs of the elderly, and shall not ignore or cold-shoulder the elderly.” [36] This principle mirrors the broad-brush underpinnings of filial piety in Confucian China and is certainly a clear statement of intent with regard to the care of elderly relatives. In isolation, it appears somewhat vague; however, when taken in conjunction with other provisions in the same law we can see the beginnings of a simpler system than the obligations of filial piety in Imperial China but with the same ideological foundations. Perhaps the best example of this is the legal requirement that “Family members living apart from the elderly shall frequently visit or greet the elderly.”[37]

Nor is this law mere lip service as it also imposes an obligation on employers to “ensure the rights of the supporters to have the family visit leave.” [38] Instead it is part of a concerted effort on the part of the recent administrations to reintroduce more elements of traditional Chinese family culture into the modern PRC. Indeed laws such as this fit perfectly with China's overall approach of encouraging the traditional family as seen in the recent “Hold Your Mother's Hand” [39] political drive. Thus, just as Stalinist Russia reintroduced elements of the previous Orthodox Christian law into the family law of the USSR, so too it appears that the PRC has reintroduced certain elements of Confucian culture into its modern family law. Indeed it is clear from the above that the reintroduction of Confucian elements into the modern family law of the PRC has reached such an extent that rather than being “socialist with Chinese Characteristics” it is now “Chinese with socialist and liberal influences.”

Conclusion

Having introduced Traditional Chinese family law (in part 1), socialist family law (in part 2) and now modern Chinese family law, it should now be apparent that while socialist and Confucian influences are certainly visible in modern Chinese family law, the common description of socialist with Chinese characteristics is somewhat off the mark. Indeed it misses two key points. The first is the question of relative importance; as argued above the traditional Chinese / Confucian influence appears to outweigh the socialist influence both in terms of the spousal relationship and certainly with respect to the parental relationship.

The second point to note is that the descriptor ignores other influences on modern Chinese family law. It has been argued that there is more than a small amount of liberal influence in modern Chinese family law. For example, the fact that the family law of the PRC law views the wellbeing of the child as paramount during divorce cases shows a strong degree of similarity to English law which states that “the child's welfare shall be the court's paramount consideration.” Further, as has been argued above, many of the purported examples of socialist influence are actually somewhat murkier in origin. To see this, consider, for example, the requirements of spousal maintenance.

Thus, in conclusion it is suggested that the family law of the 21^st century People's Republic of China is best characterised as “Chinese with socialist and liberal characteristics.”

References

[1] Harold J Berman. 'Soviet Family Law in the Light of Russian History and Marxist Theory' (1946) 56 The Yale Law Journal 26. p39

[2] Marriage Law of the Peoples Republic of China 2001.

[3] Marriage Registration Regulations of the Peoples Republic of China 2003.

[4] Marriage Law of the Peoples Republic of China (n [2]). Article 8

[5] Yang Qingjian v Zhou Baomei and Zhou Wenpi [2001] People 's Court of Jimei District of Xiamen City. Fujian Province CLI.C.67027. SPC Gazette. Issue 3. 2002.

[6] Marriage Law of the Peoples Republic of China (n [2]). Article 6

[7] ibid. Article 10

[8] ibid. Article 7

[9] ibid. Article 10

[10] ibid. Article 5

[11] ibid. Article 11

[12] ibid. Article 10

[13] ibid. Article 7

[14] ibid. Article 13

[15] ibid. Article 14

[16] ibid. Article 15

[17] ibid. Article 16

[18] ibid. Article 31

[19] Marriage Registration Regulations of the Peoples Republic of China (n [3]). Article 10

[20] MH Van Der Valk, An Outline of Modern Chinese Family law (1939). p23

[21] Marriage Law of the Peoples Republic of China (n [2]). Article 32

[22] ibid. Article 32

[23] ibid. Article 32

[24] ibid. Article 34

[25] Mo Junfei v Li Kaoxing (Hauiji County Peoples Court of Guangdong Province).

[26] Marriage Law of the Peoples Republic of China (n [2]). Article 33

[27] ibid. Article 36

[28] ibid. Article 17

[29] ibid. Article 18

[30] Protection of Women's Rights and Interests Law of the People's Republic of China 2005. Article 48

[31] Liu Yukun v Zheng Zianqiu 1994 (Qiqihar City Intermediate People's Court of Heilongjiang Province).

[32] Nelson Chow, 'Does Filial Piety Exist Under Chinese Communism?' (1991) 3 Journal of Aging & Social Policy 209. p209

[33] Protection of Minors Law of the People's Republic of China 2012

[34] ibid. Article 10

[35] Peter H Juviler, ‘Soviet Marxism and Family Law’ (1985) 23 Columbia Journal of Transnational Law 385. p397

[36] Protection of the Rights and Interests of the Elderly Law of the People's Republic of China 2012. Article 18

[37] ibid. Article 18

[38] ibid. Article 18

[39] 'China Launches “Hold Your Mother's Hand” Campaign - and President Xi Jinping Is Fronting It' Business Insider (21 February 2018) <https://www.businessinsider.sg... hina-launches-hold-yourmothcrs-hand-campaign-and-president-xi-jinping-is-fronting-it/>.