Viewpoint... Practical points of alimony disputes (below)
Published:
2024-03-04
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. The next part analyzes the defense, the proof material and the standard of alimony.
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
4. Defences
5. Evidence materials
6, alimony standard.
7. Conclusion
4. defences
Through the empirical analysis of the alimony dispute litigation, the author summarizes the children's defense in the litigation is roughly:
(1) Parents have a stable pension, enough for daily life;
(2) The parents fail to fulfill their duty of support, or one of the parents fails to support the children after the divorce;
(3) Parents have signed an agreement with their children to "sever father-child/daughter relationship", "sever mother-child/daughter relationship" or "no need to support parents;
(4) The child has difficulties in life, or loses the ability to work and cannot live independently;
(5) Parents have committed criminal acts against their children, including killing their children, maltreating their children seriously, abandoning their children, or raping their daughters.
In response to the question of whether the above-mentioned defences can be supported by the court, in the light of the general view in judicial practice:
(1) A parent's pension sufficient for daily life is not a reason for a child not to meet his or her maintenance obligations.
Case: in the civil judgment (2023) Lu 0105 Minchu No. 12718 issued by the people's Court of Tianqiao District, Jinan City, Shandong Province, the court held that in this case, although the plaintiff had a fixed monthly pension and his personal financial situation was fair, the defendant had not fulfilled his maintenance obligations in any form in recent years, which was contrary to the provisions of the law and the requirements of socialist core values, so the court was guided by socialist core values, considering the local economic level, the actual needs of the dependents, the financial ability of the dependents and other factors, each defendant is determined to pay alimony 200 yuan to the plaintiff every month. Thus partially supporting the plaintiff's claim for alimony.
(2) Whether the parents perform their duty of maintenance is not a prerequisite for the children to perform their duty of maintenance, and even if the parents fail to perform their duty of maintenance, or if one of the parties fails to perform their duty of maintenance after divorce, the children may be required to perform their duty of maintenance.
Case: in the civil judgment (2022) No. 736 of the Republic of 1426 issued by the people's Court of Pingyuan County, Guangdong Province, the court held that supporting parents is not only a fine traditional virtue of the Chinese nation, but also a legal obligation of children. It is not based on the contribution of the other party, nor can any conditions be attached. Children can not use their parents' failure to fulfill their maintenance obligations as a reason for exemption from their maintenance obligations. Specifically in this case, the second defendant is the child of the plaintiff, and the plaintiff is now 81 years old. The court supports the request of the second defendant to fulfill his maintenance obligations and pay alimony.
(3) Supporting parents is the legal obligation of children, and the legal rights and obligations between parents and children cannot be released by agreement. The agreements between parents and their children on "severing the father-son/daughter relationship", "severing the mother-child/daughter relationship" and "no maintenance agreement" are invalid, and even if the relevant agreement is signed, the child's maintenance obligation is not exempted.
Case: In the civil judgment (2022) Beijing 0109 Minchu No. 3248 issued by the People's Court of Mentougou District, Beijing, the court held that although Defendant 4 argued that the plaintiff had claimed that he did not need his support and severed the father-son relationship with him, the parent-child relationship was an identity relationship, which was linked by blood and could be eliminated by unilateral expression of a non-party. Therefore, defendant 4 in this defense not to pay alimony opinion, the court did not accept, defendant 4 should pay alimony to the plaintiff.
(4) If the child's life is difficult, it should be combined with the child's economic income, labor ability, and the parents' economic situation and other factors. If the child is living in difficulties and does not have much or no ability to support his parents financially, the child is not required to pay alimony to his parents, but other maintenance obligations such as physical care and spiritual companionship are not exempted from this.
Case: In the civil judgment (2022) Lu 0203 Minchu No. 1695 issued by the People's Court of Shibei District, Qingdao City, Shandong Province, the court held that: Regarding the payment of alimony, the two plaintiffs can take care of their own pensions and have no expenditure. The actual need for a large amount of medical expenses, etc., their income is sufficient to cover their daily living expenses. In addition, judging from the situation of the defendant, Defendant 1 currently has to pay for the life and education of his college children when receiving unemployment insurance benefits every month. Defendant 2 has less pension and family burden, and he does not have much ability or no ability to pay alimony to the two plaintiffs. The plaintiff's claim for alimony from the defendant was therefore dismissed.
(5) If the parents have committed criminal acts against their children, including killing their children, maltreating their children seriously, abandoning their children, or raping their daughters. It can be considered that the parents have seriously injured the physical and mental health of the child, at which time the parents lose the right to claim the support of the injured child, and the injured child does not need to pay alimony to the parents. However, this also puts forward high requirements for the burden of proof of the children. The children should provide sufficient evidence to prove that the parents have the above-mentioned behavior, otherwise they still need to fulfill their maintenance obligations and pay alimony.
Case: In the civil judgment (2018) Gui 1324 Minchu No. 236 made by the People's Court of Jinxiu Yao Autonomous County of Guangxi Zhuang Autonomous Region, the court held that although the defense facts of the three defendants are true, they do not belong to the situation of exempting the plaintiff from the obligation to support the plaintiff, that is, if the supporter has no economic income, loses the ability to work or cannot live independently, the dependent has serious criminal acts against the supporter, such as killing children, serious child abuse, abandonment of children, or rape of daughters. Therefore, the defense of the three defendants is unfounded and the court will not accept it.
5. materials of proof
1. Parents' evidentiary materials
In the alimony dispute lawsuit,The proof materials that parents need to provide are relatively simple. Parents need to provide evidence to prove the identity relationship, that is, there is a parent/child relationship with their children. And provide evidence to prove that there is a need to be supported, such as lack of working ability or living difficulties.
Among them, the proof of identity relationship is generally the household registration book or the birth medical certificate of the child. If the parents and children are not reflected in the same household registration book and there is no birth medical certificate, the parents need to go to the police station where the children and parents used to be in the same household. Check the original household registration file data with clear mutual relationship, or issue a relationship certificate.
The proof of lack of working ability needs to be combined with the age and physiological condition of the parents. If the parents have not reached the legal retirement age, but they really lack the ability to work due to injury and other reasons, corresponding proof materials, such as disability level materials, can be provided.
However, the proof of living difficulties is generally supported by parents' income and expenditure, such as no pension or low pension. Can't take care of themselves and need special care; Weak medical expenses are high, etc. Parents can provide corresponding materials to prove the existence of relevant facts, which can also provide factual basis for judges to determine the specific amount of alimony.
2, the child's evidence material.
And according to the parents' lawsuit,The material of proof of children is generally divided into two categories, one is the material of proof that the child claims to fulfill the obligation of support, and the other is the material of proof that the child has a legitimate defense.
Among them, the proof materials of children's fulfillment of their support obligations are scattered, often reflected in daily life, and it is difficult to obtain evidence. And the evidence of children's existence of legitimate defenses is relatively easy to fix. If the children are in financial difficulties, or lose the ability to take care of themselves, and are unable to support their parents, they can provide evidence such as income and expenditure materials, disability materials, etc.; if the parents have illegal and criminal acts against their children and seriously harm their children's physical and mental health, they can Apply for relevant alarm materials and provide evidence such as judgment documents to prove it.
6. maintenance standard
At this stage, there is no specific standard for the payment of alimony,In judicial practice, the court generally considers the local daily living standard, consumption level, children's economic status and family conditions, as well as the parents' income, expenditure, physical condition and other factors within the scope of the parents' claims. Comprehensive measure the payment standard of alimony. In the case of multiple children supporting their parents, it is also necessary to reasonably allocate the alimony payable by each child according to factors such as the economic situation of each child and the performance of maintenance obligations.
In practice, some people summarize the calculation of alimony as follows: when the child's per capita monthly income is lower than the minimum living security line, the child is deemed to be unable to provide alimony to his parents. When the per capita monthly income of a family with children is higher than the minimum living standard, alimony will be calculated at 50% for those with less than two children. For those with more than three children, alimony will be calculated at 40%, and the alimony payable will be divided by the number of dependents to obtain the alimony paid to each dependant.
The above calculation method does have certain rationality and feasibility, but in judicial practice, it cannot be mechanically applied for reference, but should be combined with the actual situation of the case and refer to the calculation. In the civil judgment (2021) No. 1924 issued by the Intermediate People's Court of Fuzhou City, Jiangxi Province, the court did not support the above-mentioned alimony calculation basis claimed by the defendant in the original trial (the appellant in the second instance) as the child, but held: In view of the father's poor physical condition, he is still in rehabilitation treatment and needs care from others in life, so the child should pay the corresponding nursing fee. With regard to the amount of nursing expenses and living expenses, the court of first instance calculated the nursing expenses and living expenses with reference to the average annual wage standard of the service industry of urban private units in Jiangxi Province in 2020 and the per capita consumption expenditure of rural residents in Jiangxi Province in 2020, and determined that Wu Mou should pay the living expenses and nursing expenses every month.
Through the empirical analysis of the cases of alimony disputes, the author summarizes the criteria for calculating alimony as follows:First of all,According to the family income and expenditure of the children, if the per capita monthly income of the children is lower than the minimum living guarantee line, or the family burden is heavy, and there is not much or no ability to support the parents financially, the children do not need to pay alimony to their parents, otherwise alimony should be paid.Secondly,It depends on whether the parents have a fixed pension/income, and if the parents' pension is higher, the children may pay less alimony, and if the parents' pension is lower, the children should pay more alimony.Again,Depending on the difference between the parents' pension and the daily expenditure and the local standard of daily living, if the parents have large expenses such as medical expenses, nursing expenses and housing expenses, or the parents' pension does not meet the local standard of daily living (with reference to the per capita consumption expenditure of local urban residents, etc.), the children should pay more alimony.And finally,Depending on the specific circumstances of the child's performance of the maintenance obligation, if a child gives more company to his parents in daily life, often buys daily necessities for his parents, and takes the parents to take care of them at home, the child's alimony can be appropriately reduced or even exempted. If the child ignores his or her parents and refuses to comply with his or her maintenance obligations, he or she may, at his or her discretion, require the child to pay more alimony.
7. epilogue
The settlement of alimony disputes requires communication and understanding between family members, as well as legal support and protection. In judicial practice, the rights and interests of all parties should be fully considered to ensure the fair, reasonable and timely payment of alimony. Even if alimony disputes are resolved through litigation, we should give full play to the advantages of mediation, properly resolve alimony disputes, promote family harmony and social stability, and enable the elderly to spend their old age in peace.
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