Viewpoint... Practical points of alimony disputes (above)

According to data released by the National Bureau of Statistics, at the end of 2023, the number of people aged 60 and above in the country reached 0.297 billion, accounting for 21.1 percent of the country's population. It can be seen that China is gradually entering an aging society, and the protection of the rights and interests of the elderly has also attracted more and more social attention. Article 1067 of the Civil Code is inherited from Article 21 of the Marriage Law, which stipulates the obligation of children to support their parents as a legal obligation, which provides a realistic legal basis for the basic living security of the elderly. Based on the children's obligation to support their parents, this paper will sort out and analyze the court of jurisdiction, the subject of litigation, the basis of the right of claim and the practical points of claim, defense, proof materials, alimony standard and other practical points of alimony dispute in judicial practice, aiming to provide a reference path for the handling of alimony dispute cases.

This article is divided into the first and the next, the first part of the jurisdiction of the court, the subject of litigation, the basis of the right of claim and the specific analysis of the claim, the next part of the defense, the evidence, the standard of alimony analysis.

Directory

(1) Jurisdictional Court

2. Subject of litigation

3, the basis of the right of claim and the request of litigation.

Courts of 1. jurisdiction

According to the basic principle of territorial jurisdiction in the Civil Procedure Law, civil litigation caused by alimony disputes shall be under the jurisdiction of the people's court of the defendant's domicile. If several defendants have their domicile and habitual residence in the jurisdiction of more than two people's courts, each The people's court has jurisdiction. It can be seen that if a lawsuit over alimony is filed, the people's court where any defendant has his domicile or habitual residence may be selected to file a lawsuit.

In addition, in order to facilitate the plaintiff to file a lawsuit and the defendant to respond to the lawsuit, Article 9 of the interpretation of the civil procedure law stipulates that if the domicile of several defendants in a case of recovering alimony, alimony and alimony is not in the same jurisdiction, it may be under the jurisdiction of the people's court of the place where the plaintiff is domiciled. However, it is worth noting that the situation that can be under the jurisdiction of the people's court of the plaintiff's domicile should meet two conditions. One is that there are multiple defendants in the alimony dispute litigation, and the other is that the defendants are in different jurisdictions. In the civil ruling (2023) Shanghai 0104 Minchu No. 9826 made by the people's Court of Xuhui District, Shanghai, the court held that as a dispute over alimony, there was only one defendant in this case, and Article 9 of the interpretation of the civil procedure law did not apply. It should not be under the jurisdiction of the people's court where the plaintiff is located, but should be transferred to the people's court where the defendant is located.

To sum up, in alimony dispute litigation, according to the basic principle of territorial jurisdiction, the defendant's domicile of course has jurisdiction, in addition, there are multiple defendants and each defendant in different jurisdictions, the plaintiff can also choose to bring a lawsuit to the people's court of the plaintiff's domicile.

subject of 2. litigation

The subject of alimony dispute litigation is the plaintiff's parents, including both biological parents, adoptive parents and stepparents who form a parenting and educational relationship. The defendants are children, including children born in wedlock, as well as children born out of wedlock and adopted children and stepchildren who have formed a nurturing and educational relationship. Children cannot bring alimony dispute litigation as plaintiffs, and even if the children have fulfilled their maintenance obligations, they have no right to bring alimony dispute litigation against children who have not fulfilled their maintenance obligations, which is not controversial in judicial practice. However, in the case of multiple children, whether parents should list all their children as co-defendants when filing alimony disputes is controversial in practice.

One view is that alimony dispute litigation is a necessary joint litigation, and parents should list all their children as co-defendants. The reason is: first, supporting parents is the legal obligation of each child, and each child should fulfill the corresponding maintenance obligation. Children are a common obligation within the scope of maintenance obligation, that is, the disputed maintenance relationship is a common rights and obligations relationship, which belongs to necessary joint litigation. Secondly, listing all children as co-defendants is more conducive to the distribution of maintenance obligations. This is also the focus of disputes in alimony disputes in the case of multiple children. On the whole, it is more conducive to the protection of the rights and interests of the elderly. Finally, listing all children as defendants is conducive to the court to find out the objective facts of the case, to the mediation of the case, and to solve the problem at one time.

Another point of view is that alimony dispute litigation does not belong to the necessary joint litigation, parents only need to make children who have not fulfilled their maintenance obligations as defendants, the reason is: first of all, children's maintenance obligations to their parents are not an indivisible common obligation as a whole, there are often differences in economic conditions between children, the court should be based on the parents' claims, it is not indivisible to reasonably determine the maintenance obligations and alimony payable by each child in the light of the actual needs of the parents and the financial ability of the children. Secondly, according to the principle of disposition in civil litigation, parents are free to decide which child to file a alimony dispute lawsuit against. Parents have the right to dispose of the right of action, and the court cannot interfere arbitrarily. The judge may explain to the parents whether to add other children. If the parents refuse to add other children, the judge should not add other children as co-defendants, otherwise it is an infringement of the parents' right to sue. Finally, parents bring alimony dispute litigation against children who have not fulfilled their maintenance obligations, and there is no need to bring alimony dispute litigation for children who have fulfilled their maintenance obligations. In addition, if children who have fulfilled their maintenance obligations are listed as co-defendants, they may push the children to the opposite of their parents, destroy the hard-won harmonious relationship in the family, deepen the estrangement between parents and children, and cause more serious harm to parents.

Through basic empirical analysis, the author finds that the first view belongs to the mainstream view in previous years. For example, in the civil ruling (2021) Lu 08 Minshen No. 640 made by the Intermediate people's Court of Jining City, Shandong Province, the court held that Huang's alimony relationship is a common right and obligation relationship, which belongs to the necessary joint litigation category. Therefore, according to Article 119 of the Civil Procedure Law: "If a party who must conduct a joint lawsuit does not participate in the lawsuit, the people's court shall notify him to participate in the lawsuit." According to the regulations, Huang's other two children, Song Mou 3 and Song Mou 2, should be added as co-defendants according to their authority.

However, in recent years, the second view has been accepted by the mainstream because it is more reasonable and more in line with the true wishes of parents. For example, the Beijing High Court made it clear in Article 11 of the reference opinions of the first people's Court of the Beijing Municipal higher people's Court on several difficult issues in the trial of marital dispute cases that in principle, only those who have disputes over the rights and obligations of maintenance can be listed as parties to the maintenance case. However, if it is really necessary to add other maintenance obligors in order to fully distribute the maintenance obligations, the people's court may add them according to the circumstances of the case. It can be seen that parents in alimony dispute litigation, can only list the existence of maintenance rights and obligations of children as defendants, the court may, according to the actual situation of the case, from the point of view of the full distribution of maintenance obligations, decide whether to add other maintenance obligations. In addition, it can be seen from many judgment documents such as (2023) Beijing 02 Minzong No. 6024 civil judgment of Beijing No.2 Middle School, (2023) Yu 1381 Minchu No. 3469 civil judgment of Dengzhou People's Court of Henan Province, (2022) Ji 0502 Minchu No. 2586 civil judgment of Dongchang People's Court of Tonghua City of Jilin Province, that many courts unanimously believe that alimony disputes are not necessary for joint litigation, parents have the right to choose to bring a lawsuit against their children who have not fulfilled their maintenance obligations, and the court shall not add other children as co-defendants beyond the principle of parental punishment.

Combined with the practical point of view in recent years, it can be concluded that alimony dispute litigation does not belong to the necessary joint litigation. According to the principle of disposition in civil litigation, parents may only bring a lawsuit against their children who have not fulfilled their maintenance obligations, and the court may explain to the parents whether other children are added as co-defendants. In addition, the court should analyze the actual situation of the case, from the perspective of facilitating the overall distribution of maintenance obligations, carefully decide whether to add other children as co-defendants, and only if necessary, otherwise it will be an infringement of the principle of parental punishment. Of course, parents can also sue all their children to the court with the understanding of their children who have fulfilled their maintenance obligations, which can not only avoid the dispute of the subject of litigation, but also facilitate the comprehensive distribution of the maintenance responsibility of the court, and solve the problem of parents' maintenance at one time.

The Basis of 3. Claim and the Claim of Action

1. Basis of claim

The most important main norm in the basis of parents' right of claim for alimony dispute litigation is Article 1067 of the Civil Code: parents who fail to fulfill their maintenance obligations and lack the ability to work or have difficulties in living have the right to demand alimony from their adult children. In addition, the various main norms, auxiliary norms and reference norms in Articles 13 to 27 of the Law on the Protection of the Rights and Interests of the Elderly also provide corresponding legal basis. It is worth noting that how to determine "lack of working ability or living difficulties" is directly related to whether parents have the right to claim alimony for adult children. Among them, the identification of "lack of labor capacity" is particularly important.

There are two views in practice. One view is that parents who reach the legal retirement age can be considered as lack of labor ability; the other view is that parents who reach the legal retirement age are not necessarily considered as lack of labor ability. The debate between the two views is still going on, and there is no unified conclusion, and in fact it cannot be concluded. The reason is that the above-mentioned criteria are reasonable in different types of civil disputes. For example, in the (2019) Lu Minshen No. 3754 civil ruling made by the Shandong High Court, the court held that the legal retirement age is the age limit for workers to withdraw from labor relations and enjoy pension insurance benefits in accordance with the law, but reaching the retirement age is not equivalent to losing the ability to work. my country's current law does not restrict retirees from obtaining legal economic income by continuing to participate in work. Therefore, the retirement age is not used as a basis for the loss of working capacity. This view is common in the traffic accident liability disputes involved in the above-mentioned cases, according to the actual situation of retirees to judge whether they have lost the ability to work more reflects fairness, is conducive to the balance of the rights and obligations of the parties to the litigation. However, in alimony disputes, supporting parents is a legal obligation of children and a traditional virtue of the Chinese nation, and the expression in Article 1067 of the Civil Code is "lack of ability to work" rather than "loss of ability to work". Obviously, it is more conducive to protecting the rights and interests of parents when they reach the legal retirement age.

In addition, refer to the provisions of Article 5 of the Measures for the Identification of Special Poor Persons issued by the Ministry of Civil Affairs: If one of the following circumstances is met, it shall be deemed as incapable of working as mentioned in these Measures:

(I) the elderly over 60 years of age;

(II) minors under the age of 16;

The intellectual and mental (III) with disability level one or three 2. levels, the physical disabled with disability level one or two, and the visually disabled with disability level one;

(IV) other circumstances prescribed by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.

Although the Ministry of Civil Affairs issued the "Measures for the Identification of Special Poor Persons" to clarify the objects of government assistance and support, it is not directly applicable to the situation where children support their parents. However, according to the basic principles of the Civil Law and the determination of the standards for the elderly in the Law on the Protection of the Rights and Interests of the Elderly, after reaching the legal retirement age, parents can no longer work and enjoy retirement benefits. It is reasonable to regard the lack of labor ability. There is no need to waste judicial resources to determine whether parents lack the ability to work. This is also conducive to carrying forward the fine tradition of respecting the elderly and helping the elderly, so that parents have the elderly, it can better protect the legitimate rights and interests of the elderly.

Therefore, as the age of parents increases, loss of labor ability is a natural law. Although there is no explicit provision in the law on the determination of lack of labor ability, it is reasonable to determine that parents lack labor ability according to the principle of analogy and the standard of legal retirement age, which is conducive to carrying forward the fine traditional virtues of respecting and helping the elderly, so that parents can rely on. Of course, even if the parents have not reached the legal retirement age, but have lacked the ability to work or have difficulties in life due to various reasons, they can also require their adult children to fulfill their maintenance obligations and pay the corresponding alimony.

2. Request for litigation

The author takes the alimony dispute as the cause of the case search, and finds that the claims filed by parents in the alimony dispute mainly include alimony, medical expenses, care and visitation.

(1) Alimony

The composition of alimony generally includes parents' basic living expenses, medical expenses, nursing expenses, housing expenses, necessary insurance expenses, etc. Depending on the time interval of the claim, the alimony claimed by the parents can be divided into alimony before the lawsuit is filed and alimony after the lawsuit is filed. In alimony dispute litigation, parents must advocate alimony after litigation, but most parents take into account the actual living conditions, children's support, and in order to maintain or ease the relationship with their children, less advocate alimony before litigation, but if there are legitimate and reasonable reasons, alimony before litigation can be supported by the court.

For parents' claims of alimony before filing a lawsuit, the court generally examines the parents' ability to work and their children's support to determine whether the children have failed to fulfill their maintenance obligations and whether there are "arrears" of alimony. In the civil judgment (2023) Lu 06 min zong No. 3955 issued by Yantai intermediate people's court of Shandong province, the court held that the plaintiff had reached the age of 60 since October 29, 1989, had no ability to work and needed child support, and the second defendant should pay alimony to the plaintiff. Taking into account the amount of per capita consumption expenditure of urban residents in Shandong Province since 1991, the plaintiff's pension and the support of his children, the plaintiff's claim for alimony before the lawsuit is partially supported. The People's Court of Jiaozhou City, Shandong Province also held the same view in its civil judgment (2022) Lu 0281 Minchu No. 4282.

It should be noted that a parent's claim for pre-litigation maintenance will not be upheld by the court if the parent has not claimed maintenance from the child prior to the prosecution; or if the burden of proof has not been met; or if the child's relevant defense is established. In the civil judgment (2023) Lu 0785 Minchu No. 2179 issued by the people's Court of gaomi city, Shandong Province, the court held that alimony is mainly to protect the elderly's daily life now and in the future, and should be put forward according to the needs of the present and future life. The plaintiff has not claimed alimony from the defendant before and has a pension. The plaintiff cannot prove that life is difficult during this period. Therefore, the plaintiff claimed that the alimony at this stage had no factual and legal basis, and the court did not support it.

(2) Medical expenses

Taking into account the gradual aging of the elderly, the possibility of illness and hospitalization is significantly higher than that of young and middle-aged people, some parents will add a medical expense that may be incurred in the future to the litigation request when filing alimony disputes, and require hospitalization in the future., The medical expenses incurred are shared by the children in order to obtain a more complete and appropriate old-age security.

There is no consensus in judicial practice on the assumption of medical expenses that may arise in the future. For example, in the civil judgment (2023) Lu 0322 Minchu No. 2499 made by the people's Court of Gaoqing County, Shandong Province, the court held that the unincurred medical expenses sued by the plaintiff could be claimed separately after the actual occurrence, thus rejecting the plaintiff's claim that the medical expenses incurred in the future should be shared by the defendant. Contrary to the above case, in the civil judgment (2023) Lu 0305 Minchu No. 4956 issued by the people's Court of Linzi District, Zibo City, Shandong Province, the court held that the plaintiff's future medical expenses could be borne equally by the three defendants on the basis of medical documents, which was in line with the legal provisions, thus supporting the plaintiff's claim that the medical expenses incurred in the future should be shared by the defendant.

After summarizing the relevant cases, the author found that the above two views are not absolute, but there are advantages and disadvantages. The court that rejected the plaintiff's claim that the medical expenses incurred in the future should be shared by the defendant held that because the relevant medical expenses did not actually occur and the plaintiff could claim rights separately after the medical expenses were incurred, it was not appropriate to deal with the issue of future medical expenses in the alimony dispute, but this view was obviously not conducive to protecting the legitimate rights and interests of the elderly. Considering that the parents are old, based on the fundamental purpose of protecting the rights and interests of the elderly, in the alimony dispute, according to the parents' litigation request, the issue of future medical expenses should be dealt with together, which is in line with legal principles, which can not only reduce the litigation burden of the parties, but also help to save judicial resources and, to a certain extent, prevent parents and children from going to court again on the issue of medical expenses in the future.

(3) Care and Visiting

In addition to specific financial care such as alimony and medical expenses, physical and spiritual care and support for parents are also very important. However, in the specific judicial practice, the judgment of physical support is relatively difficult, and the spiritual support is difficult to define and implement.

In practice, the court generally analyzes the feasibility of physical support in accordance with the parents' claims in order to make an appropriate decision. For example, in the (2022) Lu 0828 Minchu Civil Judgment No. 2427 issued by the People's Court of Jinxiang County, Shandong Province, the court held that supporting the elderly is not only a legal obligation for children, but also a traditional virtue of the Chinese nation. The plaintiff is now old and needs his children to fulfill their maintenance obligations in accordance with the law to enjoy their old age, and the way of maintenance should respect the wishes of the elderly as much as possible. Thus supporting the plaintiff's claim that the children take turns to take care of the plaintiff physically.

In contrast, how to judge and implement spiritual support is a difficult problem at present. Spiritual support is not only one or two visits, or occasional meals together, but also children's companionship and care for their parents. Even if the court decides to require children to visit their parents regularly, it may become a mere formality because of the lack of effective enforcement. Even if the court accepts the parents' application to take enforcement measures, the children often hold resistance at this time, which is likely to have counterproductive consequences.