중국 가족법의 최근 입법 동향- 民法典 婚姻家庭编⋅继承编 초안을 중심으로 -

Abstract

On August 27 of 2018, at the 5th meeting of the 13rd National People’s Congress of China standing committee, the draft of ‘the civil code of the PRC’ was promulgated. This essay focuses mainly on important aspects and characteristics of two chapters of the code ; “Marriage & Family” and “Succession”. It also points out the issues that still need some improvements. The important contents of the amendments to the “marriage & Family law” are : adding fraudulent obtainment of marriage registration into one of the reasons leading to marriage invalidity & deleting “disease” from the reasons of marriage prohibition & deleting the article birth control & newly defining the concept of “relatives”, “close relatives” and “family members” & adding the reason for trial divorce & establishing the principle for custody: custody must be decided in the manner most beneficial to the child & giving visiting right to both paternal and maternal grandparents & establishing the principle of protecting no-fault party in the property division of divorce & expanding the range of application for divorce compensation & adding articles about raising objections to parent-child relationship & improving the adoption system & adding the joint property division system for couples during the marriage & establishing the system of divorce cooling-off period. The authors point out the incompleteness of the guardianship system and advocates the articles of “Guardianship” must be established as a separate chapter. Meanwhile, the essay clarifies the issues on the identification of couple’s common debt and proposes adding the principle regulation of Unmarried cohabitation relationship. The draft of “Succession” provides a general definition on the scope of the inheritance on the basis of the current law. It also improves the current articles by: revising the disqualification of the right to inherit & reforming the system of succession by subrogation & adding printing and video to the forms of making a will & deleting the principle of the maximum validity of notary will & adding the concept of the administrator of the estate & adding the provisions regarding the ownership of the heritage with no heirs. The draft takes its point further by amending the bequest support agreement and the debt repayment articles. As a response to the draft, the authors believe that the issues concerning the expansion of the scope of legal heirs, revision of statutory succession order and introduction of ‘the legal portion of heritage’ system require further discussion.