• Abstract and Figures
• Public Full-text

“BEIYAN Yunyi” v. Yanshan Police Station, Lixia District Branch, Public Security Bureau of Jinan Municipality, A Public Security Administrative Registration Case Guiding Case No. 89 (Discussed and Passed by the Adjudication Committee of the Supreme People’s Court Released on November 15, 2017) CHINA GUIDING CASES PROJECT English Guiding Case (EGC89) January 22, 2018 Edition∗ ∗ The citation of this translation of this Guiding Case is: 《“北雁云依”诉济南市公安局历下区分局燕山 派出所公安行政登记案》 (“BEIYAN Yunyi” v. Yanshan Police Station, Lixia District Branch, Public Security Bureau of Jinan Municipality, A Public Security Administrative Registration Case), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC89), Jan. 22, 2018 Edition, http://cgc.law.stanford.edu/guiding- cases/guiding-case-89. The original, Chinese version of this case is available at 《 最高人民法院网》 (WWW.COURT.GOV.CN), http://www.court.gov.cn/zixun-xiangqing-74112.html. See also 《最高人民法院关于发布 第 17 批指导性案例的通知》 (The Supreme People’s Court’s Notice Concerning the Release of the 17th Batch of Guiding Cases), issued on and effective as of Nov. 15, 2017, http://rmfyb.chinacourt.org/paper/images/2017- 11/25/03/2017112503_pdf.pdf. This document was primarily prepared by Dr. Mei Gechlik, with research support from Zihao Zhou; it was finalized by Sean Webb, Dimitri Phillips, and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People’s Court. Keywords Administrative Public Security Administrative Registration The Right to a Name Public Order and Good Customs Proper Reasons Main Points of the Adjudication Citizens’ choice or creation of a surname [for their children] should conform to ethical concepts and traditional Chinese culture. Choosing a surname other than the father’s surname or the mother’s surname or creating a new surname merely based on personal preferences and wishes is not a type of [situation in which] “there are other proper reasons that do not go against public order or good customs” as provided for in Paragraph 2 Item 3 of the Interpretation of the Standing Committee of the National People’s Congress on Article 99 Paragraph 1 of the “General Principles of the Civil Law of the People’s Republic of China” and Article 22 of the “Marriage Law of the People’s Republic of China”. Related Legal Rule(s) Article 99 Paragraph 1 of the General Principles of the Civil Law of the People’s Republic of China1 Article 22 of the Marriage Law of the People’s Republic of China2 Interpretation of the Standing Committee of the National People’s Congress on Article 99 Paragraph 1 of the “General Principles of the Civil Law of the People’s Republic of China” and 3 Article 22 of the “Marriage Law of the People’s Republic of China” 1 《中华人民共和国民法通则》 (General Principles of the Civil Law of the People’s Republic of China), passed and issued on Apr. 12, 1986, effective as of Jan. 1, 1987, amended on and effective as of Aug. 27, 2009, http://www.npc.gov.cn/npc/lfzt/rlys/2014-10/28/content_1883354.htm. 2 《中华人民共和国婚姻法》 (Marriage Law of the People’s Republic of China), passed and issued on Sept. 10, 1980, effective as of Jan. 1, 1981, amended on and effective as of Apr. 28, 2001, http://www.gov.cn/banshi/2005-08/21/content_25037.htm. 3 《全国人民代表大会常务委员会关于〈中华人民共和国民法通则〉第九十九条第一款、〈中华人民 共和国婚姻法〉第二十二条的解释》 (Interpretation of the Standing Committee of the National People’s Congress on Article 99 Paragraph 1 of the “General Principles of the Civil Law of the People’s Republic of China” and Article 22 of the “Marriage Law of the People’s Republic of China”), passed on, issued on, and effective as of Nov. 1, 2014, http://www.npc.gov.cn/npc/cwhhy/12jcwh/2014-11/02/content_1884647.htm. Basic Facts of the Case LÜ Xiaofeng, the statutory agent of plaintiff “BEIYAN Yunyi”, claimed: ZHANG Ruizheng, [LÜ Xiaofeng’s] wife, gave birth at a hospital to a girl whom [the couple] named “BEIYAN Yunyi”. The birth certificate was processed; so was the Registration of a Newborn Awaiting to Be Reviewed for Household Registration [included in] the Family Planning Services Manual. When [LÜ Xiaofeng] handled the household registration for [his] daughter, the defendantYanshan Police Station, Lixia District Branch, Public Security Bureau of Jinan Municipality (hereinafter referred to as the “Yanshan Police Station”)did not allow [the daughter] to be registered on the household for the reason that the child’s surname had to follow her father’s surname or [her] mother’s surname, that is, [she had to be] surnamed “Lü” or “Zhang”. Based on the provisions of the Marriage Law of the People’s Republic of China (hereinafter referred to as the “Marriage Law”) and the General Principles of the Civil Law of the People’s Republic of China (hereinafter referred to as the “General Principles of the Civil Law”) concerning the right to a name, [LÜ Xiaofeng] requested that the court rule to confirm that the defendant’s act of refusing to use “BEIYAN Yunyi” as the name to process the household registration was a violation of law. Defendant Yanshan Police Station defended its position, claiming: the act of following the provisions of laws and documents from upper-level [authorities] to not use “BEIYAN Yunyi” to carry out the household registration was correct. The General Principles of the Civil Law provides that [every] citizen enjoys the right to a name, but [that law] does not have specific provisions. On December 23, 2009, the Supreme People’s Court held a press conference. In its reply to a question concerning the change of a child’s surname after [his or her parents’] divorce, [the Supreme People’s Court] stated that Article 22 of the Marriage Law is a specialized provision of the law of China4 on issues relating to children’s surnames. The provision states that children may take [their] father’s surname or [their] mother’s surname, [but] does not state that [they] may take another5 surname. Administrative organs should carry out administration according to law. Acts that are not clearly provided for by law cannot be carried out by administrative organs. Neither the plaintiff nor administrative organs have the authority to make expanded interpretations of laws. This suggests that there are only two options for children: either take [their] father’s surname or [their] mother’s surname. Speaking from another angle, the law confirms that [the purpose of] the right to a name is to enable citizens to clearly distinguish themselves from others by use of text symbols, i.e., [their] names, and to actualize their own personalities and rights. Like other rights, the right to a name is restricted by law and cannot be abused. [Having] a newborn take his 6 father’s surname or mother’s surname is a traditional custom of the Chinese nation. This custom marks blood 4 The original text reads “我国” (“my/our country”) and is translated here as “China”. 5 The term “第三” (“the third”), as used herein, means “another”. 6 The terms “he”, “him”, and “his” as used herein are, unless the context indicates otherwise, gender-neutral terms that may refer to “she” and “her”. relationships. Taking the father’s surname or the mother’s surname [reflects] blood relationships and can largely avert marriages of relatives. However, taking another surname goes against this traditional custom and against the original intent of [using] surnames. In enforcing Article 22 of the Marriage Law [with respect to] issues concerning children’s surnames, the standards for public security organs throughout the country are the same, that is, children should take [their] father’s surname or take [their] mother’s surname. In sum, the act of refusing the use, by the plaintiff’s statutory agent, of “BEIYAN Yunyi” as the [plaintiff’s] name in the application for the plaintiff’s household registration was correct. [The defendant] urged the people’s court to reject, in accordance with law, the plaintiff’s litigation requests. The court handled the case and ascertained: plaintiff “BEIYAN Yunyi” was born on January 25, 2009. Her father’s name is LÜ Xiaofeng and her mother’s name is ZHANG Ruizheng. Because they love poetry and traditional Chinese culture, the husband and wife, LÜ Xiaofeng and ZHANG Ruizheng, decided to name their beloved daughter “BEIYAN Yunyi” and used “BEIYAN Yunyi” as the name to process the newborn’s birth certificate and Registration of a Newborn Awaiting to Be Reviewed for Household Registration [included in] the Family Planning Services Manual. In February 2009, LÜ Xiaofeng went to the Yanshan Police Station to apply for [his] daughter’s household registration, [but] was told by police officers that the surname of the person to be registered should follow the father’s surname or the mother’s surname, i.e., [the child] should be surnamed “Lü” or “Zhang”; otherwise, [she] did not meet the requirements for having the registration processed for her. Because LÜ Xiaofeng insisted on using “BEIYAN Yunyi” as the name to apply for a household registration for [his] daughter, defendant Yanshan Police Station, therefore, on that day, carried out, in accordance with Article 22 of the Marriage Law, the specific administrative act of refusing to process the household registration. The case went through two public hearings, and during the trial, the statutory agent of plaintiff “BEIYAN Yunyi”, LÜ Xiaofeng, claimed: for the name “BEIYAN Yunyi” that he chose for his daughter, “Beiyan” was the surname and “Yunyi” was the given name.

Load more

  7

Copy Link