This article is from WeChat public account: Zhihe (ID: zhihedongfang) , author: Manai Dong, Hua Danjing, Dacheng (Shanghai) Law firm, title figure from: vision China

The civil code was first drafted in 1954 and lasted for more than sixty years. It was finally adopted by the third meeting of the 13th National People ’s Congress on May 28, 2020.

This article will interpret the ten highlights of the Civil Code from the perspective of a family law lawyer, try to analyze its impact and impact on the wealth protection and inheritance of China’s high-net-worth people, and try to sort out the way to deal with it.

Set a divorce cooling-off period, reduce the probability of impulsive divorce, and increase the stability of marriage

During the severe epidemic in China, the paragraph “We are not going to divorce, and my wife is pregnant with her second child” once burst into the circle of friends. Duan Zi said that there was a couple who had planned to divorce because of emotional conflicts, but because of their companionship and getting along day and night during isolation, the two re-recognized each other’s goodness and the matter of divorce naturally ended. There is a picture and the truth, Duan Zi also attached the following WeChat screenshot of the conversation between the client and the lawyer.

However, the scene described in the previous paragraph soon appeared in reverse narrative. According to the report of Peng Mei News on March 21, 2020: In the opening year of 2020, because of the epidemic situation, the speed of all walks of life has slowed down. With the arrival of the resumption of work, unexpectedly, the first one appeared “revenge growth” It turned out to be a divorce-divorce appointments across the country are almost full [1]. It is often the details of life that defeat the marriage. Emergencies like the epidemic are like catalysts, which quickly magnify the rift between the two parties, so the retaliatory growth of divorce appointments after the resumption of work is justified.

Looking at the “Statistical Bulletin of Civil Affairs Development in 2018” published by the Ministry of Civil Affairs [2], it is shown that: in 2018, civil affairs departments at all levels and marriage registration agencies handled 10.139 million pairs of marriage registrations in accordance with the law, and 4.461 million handled divorce procedures in accordance with the law. Correct. Among them, the trend chart of divorce rate and marriage rate from 2014 to 2018 more intuitively reflects the trend that the marriage rate continues to decline and the divorce rate continues to rise.

(2014-2018 Marriage Rate and Divorce Rate Trend Chart) [3]

It is not difficult to see from the above online paragraphs and news reports that many divorce decisions between couples are often impulsive, and according to the statistics of the Civil Affairs Bureau, the marriage rate continues to decline, and the divorce rate is increasing year by year. The increasing social problems are becoming increasingly prominent, so setting a cooling-off period for the divorce of the agreement can create a buffer space for the two parties to resolve sudden conflicts, which is conducive to reducing the divorce rate and enhancing the stability of the marriage and family relationship.

Strengthen the legal sanctions on the transfer of common property of spouses by one spouse

The Civil Code has made substantial amendments to the sanctions on the transfer of common property of spouses in the following aspects:

First, deleting the word “at the time of divorce” means that the sanctions for the transfer of common property of spouses are no longer limited to the transfer of common property of spouses at the time of divorce.

As a team of lawyers focusing on family disputes, we ca n’t remember how many parties were asked: Attorney, I ’m divorcing, how can I effectively transfer property? Will it be transferred to my parents? In practice, it is often the spouse who has more property and social resources will pay more attention to the transfer of property, and the savvy will often make arrangements early before the divorce. And the transfer of property did not take place during “divorce” as a shield.

Second, squandering common property of spouses is included in the new manifestation of the transfer of common property of spouses.

Article 47 of the Marriage Law lists four manifestations of concealment, transfer, sale, damage, etc. of the transfer of the joint property of the couple. Article 1092 of the Civil Code adds a manifestation of the act of squandering the transfer of the joint property of the husband and wife.

The couple originally belonged to the same forest bird, and flew separately when the divorce came. Over the past 40 years of reform and opening up, huge amounts of private wealth have been created. Accordingly, the method of transferring property in the face of divorce disputes has also kept pace with the times and has been renovated. Splurging on the common property of spouses has also become a new way for some people to transfer property when they divorce. For example, they can maliciously collude with a third person to deliberately buy some products with huge market price manipulation space at a high price to skillfully achieve the purpose of transferring the common property of spouses. The aforementioned provisions of the Civil Code can effectively close the loopholes of the previous regulations and better protect the property rights of spouses.

Fixed the basic principle of “co-debt and co-signing” of husband and wife ’s common debt by the upper law

Laws, judicial interpretations of the Supreme Court, etc. before and after the determination of the couple ’s common debt are as follows:

It needs to be emphasized that after the promulgation of the judicial interpretation of the Supreme People ’s Court, there have been many misunderstandings about “co-signing” in practice, and it is believed that only the debts generated by the husband and wife are the common debts of the husband and wife. What needs to be clarified is that “co-signing” actually means that the husband and wife have formed a common meaning to express debt. In one of the following situations, even if the spouse does not sign, the related debt should also be regarded as the husband and wife ’s joint debt:

1. The spouse recognises the debts incurred afterwards;

2. A couple ’s debts for the family ’s daily life needs in the name of the individual during the marital relationship, based on the varying degrees of economic development across the country, the court ’s debts for the family ’s daily life needs are generally in judicial practice All set different amount standards.

3. The debt of one spouse exceeds the family ’s daily life needs in the name of the individual during the marital relationship. The debt is used for the husband and wife to live together, co-produce and operate, or expressed based on the common intention of the husband and wife.

According to the provisions of the Notice of the Zhejiang Provincial Higher People ’s Court on the Proper Trial of Cases Concerning Couples ’Debt Disputes, if there is evidence to prove that the following circumstances exist, it may be considered as a couple ’s joint debt:

1. During the debt period, purchase of bulk assets, etc., formed the joint property of the husband and wife;

2. The debt is used for industrial and commercial or joint investment that the husband and wife are jointly engaged in;

3. The debt is used for the production and business activities undertaken by the borrower unilaterally, but the spouse shares the operating income.


intentional guardianship, will designated guardianship and other institutional arrangements more respect the parties ’autonomy and guardianship More diversified system

The Li Chunping series of legal dispute lawsuits that caused a sensation in Beijing City fully explained the value and significance of the intended guardianship system in Article 33 of the Civil Code. Li Chunping, known as “the first person in a hundred years of charity”, said online that he was the husband of a Hollywood movie star, inherited billions of dollars at the beginning of reform and opening up, returned to the country in 1991, and has been announced because of Alzheimer’s disease To limit the ability of people.

Since the birth of the son of Li Chunping and Han Mou on February 26, 2015 and the deterioration of Li Chunping ’s mental state, relatives represented by Han Mou and the staff around him represented by Yu Qicun revolved around Li Chunping ’s name The huge amount of property has launched many rounds of continuous open struggle, and there are currently more than ten related cases that can be publicly retrieved online. It is especially sad that Li Chunping himself has been controlled by Yu Qicun, including the sons of Han Mou, Li Chunping and Han Mou, and Li Chunping’s two sisters. Not only did they not know where Li Chunping was, let alone to meet him.

Once the troubled people were in distress, the huge amount of wealth not only did not bring him happiness, but also brought him pain and curses.

The wealthy generation who have grown up over the past 40 years of reform and opening up have gradually grown old. If they do not make arrangements for the guardianship system in advance, they will also be ruled out by Li Chunping-style curses. And family, avoid repeating the same mistakes.

If it is said that the guardianship system is a powerful legal weapon to protect the personal and property rights of the elderly, the guardianship system designated by the will is a powerful legal weapon for parents to protect the rights and interests of minor children in advance.

It needs to be emphasized that the current high-net-worth people in China are highly internationalized in terms of identity and asset allocation. We need to fully consider the factors of internationalization when providing wealth protection solutions to customers, and we need to work with professionals from relevant countries and regions to provide valuable services to customers.

In addition, Article 34, paragraph 4, of the Civil Code further improves the guardianship system, stipulating that due to emergencies and other emergency situations, the guardian is temporarily unable to perform guardianship duties, and the life of the guardian is unattended The resident committee, village committee or civil affairs department where the guardian resides shall arrange the necessary temporary life care measures for the guardian. This is also our timely response to the social phenomenon that the guardians are temporarily unable to perform their guardianship duties after the outbreak of the new coronary pneumonia.

Higher law stipulates the confirmation and denial of parent-child relationship, which is expected to bring more uncertainty to family relations and inheritance

Compared with the previous relevant judicial interpretations, the Civil Code has the following changes:

First, the legislative level of the parent-child relationship litigation has been improved. Originally related regulations are scattered in various judicial interpretations, but now they are stipulated by the fundamental law in the field of civil law. The improvement of the legislative level will increase the public’s awareness of the law.

Second, the subject who has the right to file a complaint regarding the confirmation of the parent-child relationship is changed from the spouse to the parent. Marriage Law Judicial Interpretation 3 Article 2It is stipulated that the subject who has the right to file a confirmation of the parent-child relationship is a spouse, while the provisions of the Civil Code are parents. The aforesaid changes clearly confirmed the legislative qualifications of parents who had children born out of wedlock to file a confirmation of parent-child relationship, and made up for possible loopholes in the actual operation of the law.

Once again, the subject qualifications of adult children to file a complaint for confirmation of parent-child relationship are clarified. Article 2 of the Judicial Interpretation of the Marriage Law stipulates that one of the parties may sue to confirm the parent-child relationship. However, adult children are not explicitly listed as parties, and it is not excluded that in practice adult children request confirmation of parent-child relationship but tell Nowhere. In addition, the conditions for confirming the parent-child relationship specified in Article 2 of the Judicial Interpretation of the Marriage Law are to provide the necessary evidence to prove that the other party refuses to do the paternity test without the contrary evidence; while the conditions stipulated in the Civil Code are justified, in essence It also lowers the threshold for prosecution of adult children requesting confirmation of parent-child relationship.

Finally, the provision in the consultation draft that adult children have the right to file a denial of parent-child relationship is deleted. Considering that the adult children have been brought up by their own parents, if the adult children are given the subject qualification to file a complaint of denial of the parent-child relationship, it is contrary to the moral ethics in the traditional culture of our country.

Many Chinese tycoons have children born out of wedlock, so changes in the litigation rules for confirmation and denial of parent-child relationships are expected to bring greater uncertainty to the stability of their family relationships. In addition, if these wealthy people do not make scientific and effective wealth inheritance arrangements in advance, after their deaths, it is expected that more illegitimate children will appear in the battle of inheritance litigation, which will inevitably be a privacy exposure. destroy. The murder case of the Chinese national rich man who broke the body in Vancouver on May 2, 2015 is a typical example of extremely bloody and sensational.

On May 2, 2015, Yuan Gang was killed in his mansion. The body was cut open and 108 pieces were packed in bags. Yuan Gang ’s cousin Zhao Li was charged with second-degree murder. Testimony in another civil case concerning Yuan Gang ’s property showed that Yuan Gang kept changing his girlfriend ’s (up to 100) of which seven from China The women claimed that their children deserved a part of Yuan Gang ’s estate of about $ 21 million in Canada. The judge ruled that five of them had the right to divide Yuan Gang ’s property. There are also two women who claim to be partners to fight for their inheritance. [4]

Respect the current national conditions, expand the range of subrogation heirs, avoid the nationalization of the estate due to the absence of legal heirs, and increase the protection of private propertyProtect

According to the provisions of the Civil Code, the scope of subrogation of the heir is extended from the immediate blood of the decedent ’s children to the children of the heir ’s siblings.

In a case of an inheritance dispute in an old house in Shanghai, the four brothers and sisters passed away one after another, and when the four sisters died, their parents were neither alive nor children. According to the current law, if the four sisters have no bequest arrangements, their names The share of old houses held under will be nationalized. However, according to the provisions of the Civil Code, the share of the four sisters will be inherited by the children of her eldest brother and third brother, effectively avoiding the situation of uninherited private property.

In addition, according to a social survey conducted by the Zero Point Survey in February 2017, 600,000 voluntary infertile “Dink” families have appeared in large and medium-sized cities in China. For couples who have been married for more than 5 years and do not have children, families in Beijing account for 10%, Shanghai account for 12.4%, and Shenzhen account for 11.8%. Nearly 70% of respondents believe that “Dink families will increase.” [5]

According to the previous inheritance law, the large number of Dink families will inevitably result in a large amount of inheritance being nationalized because there is no legal heir to inherit.

We have met with successful female business owners many times during our exchanges with domestic and foreign private bank clients and offered to pass on their property to their siblings ’children. The revision of the Civil Code embodies the legislative spirit for the protection of private property and echoes the actual needs and wishes of a large number of Dink families.

According to the progress of science and technology, two types of testaments, print and testament, will be added

In 2017, we used the Shanghai Intermediate and Higher People ’s Courts as a sample of cases of inheritance of the will to conduct case statistics. A total of 168 cases were retrieved, of which 132 were judged to be valid by the court and the remaining 36 were judged to be invalid or part invalid. In cases that were found to be invalid, the court directly determined that the testament was invalid on the grounds that the testament was printed on behalf of others, and 4.3% determined that the testament was invalid on the grounds that the testament was printed by a non-testator or a surrogate.


In addition, in the Suzhou Intermediate Court that we searched, we inherited a dispute case (Case No: (2014) Su Zhong Shao Min Zhong Zi No. 0001) , the heir Mr. Liao suffered from cancer on February 12, 2011On the witness of the lawyer, he printed and produced a copy of his will at home and gave all his property to his wife. The court of first instance determined the validity of the will. After the appeal, the Suzhou Intermediate Court denied the effectiveness of printing the will based on the invalidity of the attorney’s testimony and the fact that the testament was produced by the testator Liao Mou. It can be seen that even if a lawyer witnesses the signature, the court’s review of the printing of the will is still relatively strict.

The provisions of the Civil Code are expected to greatly reduce the working time for us to meet in testament. In the past, considering that the printing of testaments is more controversial in judicial practice, in order to ensure that the testimony we witnessed is valid, we are very cautious in letting customers write two wills. Because our clients are rich in assets, we each Before giving a testament testimony, you must notify the client to reserve half a day to a day in advance. Our two practicing lawyers must also accompany you throughout the process and ensure that you appear in the video. Each testimony takes time and effort.

While printing the testament brings us convenience, we should still not forget why printing the testament is prone to disputes in judicial practice. The biggest hidden danger is that it is impossible to absolutely confirm whether the act of such a major life decision is the testator True meaning. Therefore, there will be more disputes over the effectiveness of printing wills made by people with limited mobility or even death.

In line with international practice, the priority clause of the notary notarization will be deleted, and it is expected that disputes around the authenticity of the will will increase

For the heir, the priority effect of the civil code to delete the notarized will will undoubtedly improve the convenience of changing the content of the will, that is, the heir can change the will at any time without going through strict notarization procedures. But on the other hand, the freedom to change the testament also increases the uncertainty of the testament, which can easily lead to disputes related to the testament.

In practice, notaries have standardized operating procedures and stricter rules for notarization of wills, and testators generally leave audio and video recordings when they make a will at notaries. Notaries will also keep a copy of the will, which can be very large ChengDissolve will disputes.

For example, in the aforementioned Shanghai court case search, it was estimated that 13.04% of the wills were finally invalid because they could not prove the testator ’s mental state and ability to express (See picture below) . When the notary public notarizes, he usually talks to the testator, which can preliminarily judge his mental state, which effectively reduces the risk of the validity of the will. After we provide the parties with the signing of the will and the witnesses of the lawyers, we will also recommend that the parties notarize the signed will to reduce the risk of litigation related to the succession of the will.

Refine the administrator system, and try to ensure the real wishes of the heirs through the system

In the more than 30 years since the succession law was passed, as China ’s economy has taken off and private wealth has increased dramatically, disputes and lawsuits caused by inheritance have continued to rise. Although the Chinese cultural tradition is more taboo about death, as Benjamin Franklin said, taxation and death are two inevitable events in life.

In the face of more and more inheritance disputes, China ’s high net worth families are increasingly accepting wills. Bridges in western TV dramas where lawyers read the will will also become more common in China. For high-net-worth families, because the property is more complex and needsThrough the change of property ownership, and many times there are many heirs, a set of operational estate manager system helps to finally transform the will from will to reality.

Improve the legacy support agreement system and appropriately expand the scope of supporters

According to the 20th series of reports on the 70th anniversary of the founding of New China released by the National Bureau of Statistics on September 23, 2019, 70 years since the founding of New China, the type of population reproduction has undergone two changes. With the initial formation of an aging age structure, China has begun to enter an aging society. The acceleration of population aging is an important risk and challenge facing population development in the new era.

In addition, according to the latest data released by the National Bureau of Statistics [7], the number of births nationwide in 2019 has decreased by 580,000 compared with 2018. This is the three consecutive years since the implementation of the comprehensive two-child policy.

Under this background of accelerated aging, reduced birth rate, empty nest, and widowed elderly care, new types of old-age care models such as “house-based care” have emerged, and the legacy support agreement system allows such old people to have The legal guarantee of “old people have a basis”. This Civil Code further expands the scope of supporters from the original supporters and collective ownership organizations to organizations or individuals other than heirs. It not only protects the “old people have support”, but also meets the diversified needs of old-age care, which is in line with ourn class = “text-remarks”>, Author: Manai Dong, Hua Danjing, Dacheng (Shanghai) Law Firm