Civil and Commercial Perspective | Who is the Defendant in the "Bear" Child Causing Trouble in Single Parent Families
Published:
2022-05-13
Brief description of case Ms. Xu and Mr. Zhang got married on May 8, 2007 and gave birth to a son, Zhang Xiaoming, on March 2, 2008. On December 3, 2018, the two parties were divorced by the court; the legitimate child Zhang Xiaoming was raised by Mr. Zhang; Ms. Xu paid Zhang Xiaoming a maintenance fee of 3000 yuan before the 3rd of each month; Ms. Xu visited twice a month, and each visit was for one day., The specific date is negotiated between the two parties. After the divorce, Ms. Xu paid maintenance on time every month, but Mr. Zhang never allowed Ms. Xu to visit the children. Mr. Zhang is usually busy with his work, and the children are looked after by his grandmother for a long time. Grandma usually dotes on the children, which leads to the children being very naughty. Ms. Xu was anxious in her heart, but there was nothing she could do. On March 22, 2022, Zhang Xiaoming injured his classmate Xu Yuxin at school. Xu Yuxin sued Mr. Zhang, Ms. Xu, Zhang Xiaoming and the school, asking Mr. Zhang, Ms. Xu, Zhang Xiaoming and the school to compensate Xu Yuxin for medical expenses, nursing expenses, transportation expenses, compensation for mental damage, study counseling and other related expenses totaling 45488 yuan. As the injured part is prone to fracture again, the right to continue to demand payment of medical expenses, nursing expenses, transportation expenses, etc; to bear the costs of litigation. The People's Court notified Ms. Xu to participate in the proceedings. Ms. Xu believes that she has been divorced for five years. According to the divorce judgment of the people's court, the child is directly raised by her father. She has not lived with the child and cannot exercise the right to educate him. Moreover, the father of the child directly deprived her of the right to visit the child. Therefore, the court informed her that there was no legal basis to participate in the proceedings with the child's father as the child's legal guardian. He is also a victim himself. In the face of his own flesh and blood, he cannot meet each other. Moreover, it is the grandmother who directly raises and takes care of the child. To take a step back, even if he is responsible, it should be the father and grandmother of the child. Lawyer's opinion First of all, according to Article 67 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, if a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian are co-defendants. Specifically in this case, because Zhang Xiaoming injured his classmate Xu Yuxin at school, Xu Yuxin has the right to sue Zhang Xiaoming and his parents. Secondly, the relationship between the rights and obligations of parents and children based on blood relationship, is a kind of natural parental relationship. The existence of such a relationship does not depend on the marital status of both parents and the existence of direct upbringing and education of children. Although Ms. Xu did not directly raise her children after her divorce, the mother-child relationship with her children has not changed, and the legal relationship of rights and obligations has not disappeared. After the people's court accepted the case of the right to health dispute in which her child was the defendant, it was informed that there was a sufficient legal basis for her to participate in the lawsuit. Finally, although Zhang Xiaoming's grandmother actually takes care of Zhang Xiaoming's daily life, she should not be listed as a defendant because she is not the legal guardian of the child. Legal provisions 1. Article 1084 of the the People's Republic of China Civil Code stipulates that the relationship between parents and children shall not be eliminated by the divorce of the parents. After divorce, the children, whether raised directly by the father or mother, remain the children of both parents. After divorce, parents still have the right and duty to raise, educate and protect their children. The first paragraph of Article 27 of the the People's Republic of China Civil Code stipulates that parents are the guardians of minor children. 3. Article 1,178 of the the People's Republic of China Civil Code stipulates that if a person without civil capacity or a person with limited civil capacity causes damage to others, the guardian shall bear tort liability. If the guardian fulfills his duty of guardianship, his tort liability may be reduced. If a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to another person, he shall pay compensation from his own property. 4. Article 67 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law stipulates that if a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian are co-defendants.
Brief description of case
Ms. Xu and Mr. Zhang got married on May 8, 2007 and gave birth to a son, Zhang Xiaoming, on March 2, 2008. On December 3, 2018, the two parties were divorced by the court; the legitimate child Zhang Xiaoming was raised by Mr. Zhang; Ms. Xu paid Zhang Xiaoming a maintenance fee of 3000 yuan before the 3rd of each month; Ms. Xu visited twice a month, and each visit was for one day., The specific date is negotiated between the two parties. After the divorce, Ms. Xu paid maintenance on time every month, but Mr. Zhang never allowed Ms. Xu to visit the children. Mr. Zhang is usually busy with his work, and the children are looked after by his grandmother for a long time. Grandma usually dotes on the children, which leads to the children being very naughty. Ms. Xu was anxious in her heart, but there was nothing she could do. On March 22, 2022, Zhang Xiaoming injured his classmate Xu Yuxin at school. Xu Yuxin sued Mr. Zhang, Ms. Xu, Zhang Xiaoming and the school, asking Mr. Zhang, Ms. Xu, Zhang Xiaoming and the school to compensate Xu Yuxin for medical expenses, nursing expenses, transportation expenses, compensation for mental damage, study counseling and other related expenses totaling 45488 yuan. As the injured part is prone to fracture again, the right to continue to demand payment of medical expenses, nursing expenses, transportation expenses, etc; to bear the costs of litigation. The People's Court notified Ms. Xu to participate in the proceedings. Ms. Xu believes that she has been divorced for five years. According to the divorce judgment of the people's court, the child is directly raised by her father. She has not lived with the child and cannot exercise the right to educate him. Moreover, the father of the child directly deprived her of the right to visit the child. Therefore, the court informed her that there was no legal basis to participate in the proceedings with the child's father as the child's legal guardian. He is also a victim himself. In the face of his own flesh and blood, he cannot meet each other. Moreover, it is the grandmother who directly raises and takes care of the child. To take a step back, even if he is responsible, it should be the father and grandmother of the child.
Lawyer's opinion
First of all, according to Article 67 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, if a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian are co-defendants. Specifically in this case, because Zhang Xiaoming injured his classmate Xu Yuxin at school, Xu Yuxin has the right to sue Zhang Xiaoming and his parents.
Secondly, the relationship between the rights and obligations of parents and children based on blood relationship, is a kind of natural parental relationship. The existence of such a relationship does not depend on the marital status of both parents and the existence of direct upbringing and education of children. Although Ms. Xu did not directly raise her children after her divorce, the mother-child relationship with her children has not changed, and the legal relationship of rights and obligations has not disappeared. After the people's court accepted the case of the right to health dispute in which her child was the defendant, it was informed that there was a sufficient legal basis for her to participate in the lawsuit.
Finally, although Zhang Xiaoming's grandmother actually takes care of Zhang Xiaoming's daily life, she should not be listed as a defendant because she is not the legal guardian of the child.
Legal provisions
1,Article 1084 of the the People's Republic of China Civil CodeIt is stipulated that the relationship between parents and children shall not be eliminated by the divorce of parents. After divorce, the children, whether raised directly by the father or mother, remain the children of both parents.
After divorce, parents still have the right and duty to raise, educate and protect their children.
2,Article 27 (1) of the the People's Republic of China Civil CodeRule: Parents are the guardians of minor children.
3,Article 188 of the the People's Republic of China Civil CodeProvisions: If a person without civil capacity or a person with limited civil capacity causes damage to others, the guardian shall bear the tort liability. If the guardian fulfills his duty of guardianship, his tort liability may be reduced. If a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to another person, he shall pay compensation from his own property.
4、Article 67 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure LawProvisions: If a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian shall be the co-defendant.
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