“BEIYAN Yunyi” V. Yanshan Police Station, Lixia District Branch, Public Security Bureau of Jinan Municipality, a Public Security Administrative Registration Case

“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 Article 22 of the “Marriage Law of the People’s Republic of China”3

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 defendantYanshan 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.

Because the case involved issues about the application of laws, it had to be sent to [relevant] organs with the authority to make an interpretation or confirmation. On March 11, 2010, [the court] ruled to suspend the adjudication of the case. After the cause of the suspension was eliminated, the adjudication of the case resumed on April 21, 2015.

Results of the Adjudication

On April 25, 2015, the Lixia District People’s Court of Jinan Municipality rendered the (2010) Li Xing Chu Zi No. 4 Administrative Judgment:7 [the court] rejects the litigation request of

7 《北雁云依与济南市公安局历下区分局公安户口行政登记一审行政判决书》 (BEIYAN Yunyi and Lixia plaintiff “BEIYAN Yunyi” for [the court’s] confirmation that defendant Yanshan Police Station’s act of refusing to use “BEIYAN Yunyi” as the name to process the household registration was a violation of law.

After the first-instance judgment was pronounced and delivered, neither the plaintiff nor the defendant appealed. The judgment has already come into legal effect.8

Reasons for the Adjudication

In the effective judgment, the court opined:9 on November 1, 2014, 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” was passed at the Eleventh Session of the Standing Committee of the Twelfth National People’s Congress. The legislative interpretation provides:

[Every] citizen enjoys, in accordance with law, the right to a name. In exercising the right to a name, [every] citizen should also respect social morals and must not harm social and public interests. [Every] citizen should, in principle, follow his father’s surname or his mother’s surname. In any of the following situations, [a citizen] may choose a surname other than [his] father’s surname and [his] mother’s surname:

(1) [the citizen] chooses the surname of a direct lineal elder who is a blood relative. (2) because [the citizen] is reared by a person other than [the citizen’s] statutory supporter, he chooses the surname of the rearing person.

District Branch, Public Security Bureau of Jinan Municipality, The First-Instance Administrative Judgment of a Public Security Household Administrative Registration Case) （2010）历行初字第 4 号行政判决 ((2010) Li Xing Chu Zi No. 4 Administrative Judgment), rendered by the Lixia District People’s Court of Jinan Municipality, Shandong Province, on Apr. 22, 2015, full text available on the Stanford Law School China Guiding Cases Project’s website, at https://cgc.law.stanford.edu/judgments/shandong-2010-li-xing-chu-zi-4-administrative-judgment. According to the above-mentioned original judgment, the date when the judgment was rendered was April 22, 2015, instead of April 25, 2015, as stated in this Guiding Case. 8 The original text reads “判决已发生法律效力”. According to Article 155 of the Civil Procedure Law of the People’s Republic of China, judgments and rulings that “have already come into legal effect” are judgments and rulings of the Supreme People’s Court as well as judgments and rulings which, according to law, may not be appealed or which have not been appealed within the prescribed time limit. 《中华人民共和国民事诉讼法》 (Civil Procedure Law of the People’s Republic of China), passed on, issued on, and effective as of Apr. 9, 1991, amended three times, most recently on June 27, 2017, effective as of July 1, 2017, http://www.npc.gov.cn/npc/xinwen/2017- 06/29/content_2024892.htm. 9 The original text does not specify which court opined. Given the context, this should be the Lixia District People’s Court of Jinan Municipality.

(3) there are other proper reasons that do not go against public order or good customs.

The surname of a citizen of a minority ethnic group may be based on the cultural traditions and customs of his ethnic group.

This case did not involve the situation of choosing the surname of a direct lineal elder who is a blood relative or [the situation of] choosing the surname of a rearing person who is not [a citizen’s] statutory supporter. The focus of the case was on whether the reason put forward by the plaintiff’s statutory agent, LÜ Xiaofeng, conformed to [the conditions of the situation that] “there are other proper reasons that do not go against public order or good customs” provided for in Paragraph 2 Item 3 of the above-mentioned legislative interpretation.

First, from the perspective of social administration and development, children’s inheritance of [their] parents’ surnames is conducive to improving the efficiency of social administration; it facilitates the carrying out of preliminary judgments of administrative organs and other members of society on major social relations of the individual using the surname. Allowing surnames to be randomly chosen or even wantonly created will increase the cost of social administration. This will be detrimental to society and individuals and will be detrimental to the maintenance of social order and the realization of the good control of society. This will also easily lead to chaos in social administration and will increase the riskiness and uncertainty of social administration.

In addition, a citizen’s choice of a surname involves public order and good customs. In traditional Chinese culture, [the character] “Xing” [(“姓”)] in [the term] “Xing Ming” [(“姓名”)] means surname. [A surname] mainly originates from inheritance, [an] objective [factor]. It is passed down by ancestors, carries respect for ancestors, ardent love for family, etc., and reflects blood lineage, ethical order, and cultural traditions. [The character] “Ming” [(“名”) in the term “Xing Ming”] originates from subjective creation, is given by parents, and carries personal preferences, personality traits, the wishes of elders, etc. Citizens’ emphasis on and reverence for the inheritance of surnames not only reflects blood relationships and kinships but also carries rich cultural traditions, ethical concepts, and humanistic feelings. [Such emphasis on and reverence for the inheritance of surnames] are in line with mainstream values and are carriers and mirror images of the solidarity and cohesion of the Chinese nation.

A citizen, in principle, follows [his] father’s surname or [his] mother’s surname. This conforms to ethical concepts and traditional Chinese culture and conforms to the wishes and actual practices of the vast majority of citizens. On the contrary, if citizens are allowed to, merely based on personal wishes and preferences, randomly choose surnames or even create surnames, this will result in an attack on cultural tradition and ethical concepts and will go against good customs of society and general moral demands.

Further, [every] citizen enjoys, in accordance with law, the right to a name. A citizen’s exercise of the right to a name is a type of civil activity. [In exercising such a right, the citizen] should follow Article 99 Paragraph 1 of the General Principles of the Civil Law and Article 22 of the Marriage Law and should also abide by Article 7 of the General Principles of the Civil Law, that is, [the citizen] should respect social morals and must not harm social and public interests. Under normal circumstances, [a person’s] act of choosing a surname other than his father’s surname or his mother’s surname mainly occurs in various situations, including those in which the actual rearing relationship changes, those which are conducive to [the development of] a minor’s physical and mental health, and those which preserve an individual’s personal dignity.

In this case, the parents of the plaintiff “BEIYAN Yunyi” created “Beiyan” as a surname, and the reason for choosing “BEIYAN Yunyi” as the name for handling the daughter’s household registration was: “[our] daughter’s name has the four characters ‘Bei Yan Yun Yi’ [(‘北’, ‘雁’, ‘云’, ‘依’)], taken from four famous Chinese classical poems to import the parents’ good wishes for their daughter”. This reason was merely based on personal preferences and wishes to create a surname. The reason [involved] obvious randomness and did not conform to the situation as provided for in Paragraph 2 Item 3 of the [above-mentioned] legislative interpretation and should not be supported.

(Adjudication personnel of the effective judgment: REN Jun, BAI Yang, and QIAN Xin)