Divorce Property Disputes-Hubei Chuyou Law FirmFirst Civil Division of the Supreme People's Court: What should I do if both parties do not raise children during divorce proceedings?
Source: Judicial Interpretation of the Civil Code of the Supreme People's Court on Marriage and Family (I) Understanding and Application (Excerpt) Summary: This article is excerpted from the First Civil Trial Division of the Supreme People's Court, edited by the Judicial Interpretation on Marriage and Family of the Civil Code of the Supreme People's Court (I) Understanding and Application" (People's Court Press, July 2021, First Edition).
【Legal Provisions】 Article 60 of the Judicial Interpretation of the Civil Code of the Supreme People's Court on Marriage and Family (I) If both parties refuse to support the children during the divorce proceedings, they may first rule that one party shall temporarily raise them.
Generally speaking, the exercise and fulfillment of the rights and obligations of parents over minor children and adult children who cannot live independently are based on the obligations and responsibilities of personal and property relations arising from the status of paternity. There is a natural blood relationship between parents and children, which has a human relationship, which reflects the law of the growth and continuation of human life. Parents are not only the natural and legal caregivers of their children, but also have the mission and responsibility to ensure the healthy growth of their children, and of course they should bear the primary responsibility for the survival and development of their children. China's Constitution, the Civil Code, the Law on the Protection of Minors and other laws clearly stipulate that parents have the right and duty to raise, educate and protect their minor children, and are not affected by whether the parents are married, unmarried, divorced, null and void of marriage or whether they are separated.
1. How to understand "during divorce proceedings, both parties refuse to support their children"
The reason why national legislation establishes the obligation to raise children as a legal obligation, which cannot be renounced or transferred, is generally based on the parent-child relationship formed by blood, maintenance and adoption, that is, the parent-child relationship. In addition to the obligation to raise children based on the relationship between parents and children, Article 1074 of China's Civil Code also stipulates that grandparents who can afford it have the obligation to support minor grandchildren whose parents have died or whose parents are unable to raise them. That is to say, grandparents and grandchildren are direct blood relatives of different generations, and a relationship of support and maintenance can be formed between them if the legal conditions are met. Paternity based on blood or adoption is not affected by the parents' marriage, unmarriedness, divorce, annulment, or separation. Only the parent-child relationship formed by the relationship of upbringing and education may be dissolved by the divorce of the stepparents. Correspondingly, in principle, whether or not the parents divorce does not affect the parents' joint maintenance obligation to the children, but it will change from the joint support of the children by the parents to the direct support of one parent and the indirect support of the other parent. Similarly, the obligation of grandparents to support grandchildren and grandchildren under the conditions prescribed by law is irrelevant to the marital status of the grandparents themselves.
As far as the refusal of both parties to perform the maintenance obligation is concerned, although the scope of "both parents" is not specified, it should be limited to "both parents"。 The reasons for this are: First, in theory, although there is indeed the possibility that grandparents or maternal grandparents refuse to perform their legal maintenance obligations, from the perspective of real life situations, it is very rare for grandparents and maternal grandparents to bear the obligation to support their grandchildren and maternal grandchildren but refuse to bear them, and there are almost no cases where both parties refuse to support their grandchildren or maternal grandchildren during divorce proceedings. It is therefore not necessary to regulate it through this article. Second, in the vast majority of cases, the parent who has a maintenance obligation to the child is the parent. Furthermore, parents are the main ones who refuse to fulfill their child support obligations. Therefore, from a problem-oriented point of view, this article only provides for the common situation of parents refusing to fulfill their obligations to support their children. Finally, from the point of view of textual interpretation, the expression used in this article is that "both parties" refuse to maintain "children". In common sense, "children" correspond to "parents", and "grandparents and maternal grandparents" should correspond to "grandchildren and grandchildren". If "both parties" include grandparents and maternal grandparents, the provision "grandchildren" shall be added to this article after "children". Since there is no expression "grandchildren and maternal grandchildren", the combination of the previous and subsequent expressions can also lead to the conclusion that "both parties" in this article refers specifically to "both parents".
The "refusal to support" here can be refined into two points: refusal and maintenance. There may be differences in understanding of what constitutes "refusal": one view holds that regardless of whether the parents have the ability to support the child or not, as long as the parents clearly indicate that they will not raise the child, it is "refusal to support" within the meaning of this article; According to another view, refusal to maintain should be limited to subjective unwillingness to do so without the capacity and conditions for support, and does not include situations where maintenance is objectively impossible without the capacity and conditions.
We believe that parents' obligation to support their children is a legal obligation based on the parent-child relationship, which is personal and ethical, and cannot agree on conditions or give up, let alone refuse on the grounds of lack of ability to support or conditions of support. Articles 1058, 1067 and 1084 of the Civil Code do not stipulate that parents should have the ability or conditions for support to perform their maintenance obligations. Whether from the perspective of doctrine or legal provisions, the parents' ability to support or the conditions of support are not a prerequisite for fulfilling the maintenance obligation, let alone a reason for refusing to perform the maintenance obligation. Even if there is a situation where the parents are unable to support the minor child, according to Article 1074 of the Civil Code, if the parents are unable to raise the minor child, the grandparents have the obligation to support the minor grandchild or maternal grandchild. However, this only increases the maintenance obligor, not exempts the parents from the maintenance obligation. What is a "maintenance obligation"? During the period of the parents' marriage and the period of unmarried cohabitation, the parents shall jointly bear the obligation to support the children by living with them. However, in the case of divorce, annulment or separation of the parents, since the parents do not live together, it is objectively impossible to jointly perform the obligation to support the child, so the child can only live with one of the parents, and one parent alone takes care of the child's daily life. Article 1084 of the Civil Code refers to it as "direct maintenance", while the other party provides indirect maintenance through the payment of maintenance and the exercise of visitation rights. Although the obligation to support children referred to in this article is limited to the period of divorce proceedings, before divorce, most of the parents no longer live together, so "maintenance" here should also refer to direct maintenance.
The reason why this article is limited to "during divorce proceedings" is that although parents may refuse to perform their obligation to support their children without suing for divorce or even without marital relationship, since these circumstances have not entered the judicial procedure, the people's court has no way of knowing or having the authority to deal with the refusal to perform the maintenance obligation in these circumstances based on the principle of no prosecution and no reason. Only if the parties file a lawsuit with the court, and after the court accepts it, it is found that both parents refuse to raise the child, it is necessary to deal with it through judicial interpretation. From the feedback from judicial practice, it can be seen that in most cases, the court finds through the acceptance of the case that both parents have not fulfilled their obligation to support the children in the divorce proceedings, so this article is limited to "the period of divorce proceedings". As for the term "children" referred to in this article, they mainly include minor biological children, adopted children and stepchildren in dependent education, with exceptions including adult children who are unable to live independently. It should be noted here that the obligation of parents to support their children has nothing to do with whether the child is born in wedlock, since, according to article 1071 of the Civil Code, children born out of wedlock enjoy the same rights as children born in wedlock.
II. How to understand "may first rule that temporary maintenance by one party may be held"
The controversy over the content of this article mainly focuses on how to interpret the phrase "may be ruled in advance to be temporarily maintained by one party". After combing through, there are roughly the following understandings:
First, the ruling that one party should temporarily raise the child is the basis for the judgment on who directly raises the child when both parents indicate that they will not raise the child in a divorce case. According to the relevant judgment documents retrieved, many judgment documents directly follow the provisions of Article 1993 of the 20 Opinions on Child Support in Divorce Cases (that is, the content of this article), and the judgment is that one of the parents should directly raise the children.
Second, the ruling that the temporary custody of one party is understood as a manifestation of conduct preservation, holding that since parents have a statutory maintenance obligation to their children, and the maintenance obligation is mainly manifested in paying maintenance or directly taking care of daily life, which is essentially an act of payment, in the absence of a judgment, in order to ensure that the children are not adversely affected by the parents' refusal to perform the maintenance obligation during the divorce proceedings, one of the parents may be ordered to perform certain acts according to Article 100 of the Civil Procedure Law. That is to say, the act of maintenance referred to in this article that preemptively adjudicates the temporary maintenance of one party.
Third, from the perspective of functional role, the temporary maintenance of one party should be regarded as a prior enforcement measure. By forcing one of the parents to temporarily perform the maintenance obligation and maintain the child's normal life, it is possible to avoid the hardship caused to the child's life if both parents refuse to perform the maintenance obligation during the divorce proceedings.
Among the above views, we are more inclined to believe that under the current legal framework, the legal nature of "prior ruling temporary maintenance by one party" in this article is similar to the preservation of conduct.
Since both parents indicated to the court during the divorce proceedings that they refused to take care of the child directlyMaintenance, showing indifference to the maintenance of children during divorce proceedings, usually does not take the initiative to apply to the court to rule that the children are temporarily maintained by one party.Under such circumstances, proceeding from the principle of the best interests of the child, it is necessary for the people's court to promptly and ex officio to rule that one of the parents shall temporarily raise the child. In this regard, only the temporary upbringing of the ruling by one of the parents is interpreted as a preservation of conduct, which is consistent with the current legal provisions.
[Issues that should be paid attention to in trial practice]
Although in judicial practice, it is rare for people's courts to apply this article, what needs to be considered is what should be done if one of the parents refuses to enforce the ruling, and whether the party who does not need to temporarily raise the child should pay child support during the period of temporary maintenance after enforcement. A simple analysis of this is as follows:
1. Deal with when one of the parents refuses to carry out the ruling of the people's court temporarily raising the child
Although this article stipulates that during divorce proceedings, if both parents refuse to raise the child, the people's court may first rule that one of the parents should temporarily raise the child, but this article does not stipulate what to do if one of the parents does not raise the child as required by the ruling. In this regard, there is a view that the parents' obligation to support their children stems from the parent-child relationship between parents and children, which is of a personal nature, so even if the above-mentioned situation of not raising children in accordance with the requirements of the ruling occurs, it cannot be enforced against one of the parents; Another view is that the nature of a ruling of temporary maintenance by one parent is a ruling of preservation of conduct, which has already taken legal effect and has the content of payment, and can be used as a basis for enforcement when one of the parents fails to perform his or her obligations.
We believe that the enforcement of the ruling of the people's court to temporarily raise the child by one parent is essentially the enforcement of the completed act that the person subject to enforcement should perform. In the theory of execution, acts can be divided into fungible acts and non-fungible acts according to whether they can be performed by a third person. If, from the creditor's point of view, the economic and legal effects of performance of an obligation do not depend solely on the fulfilment of the obligation by the debtor itself, the act may be carried out by a third person, i.e. a substitute act. In addition, from the debtor's point of view, the fungible act must also be one that is legally permitted to be committed by a third person. For example, mechanical activity (painting walls) that does not depend on a particular level of intelligence or physical condition is often a substitute behavior. An act is irreplaceable if, for the creditor, the economic or legal effects of performance depend precisely on the debtor's personal performance. As far as the people's court ruled that the temporary upbringing of the child by one parent falls within the scope of payment behavior, from the perspective of the child's emotional dependence on the parents and blood connection, it is obvious that the act of personal performance of support by one parent is generally more conducive to the healthy growth of the child than the substitute upbringing of others, and is more in line with the principle of the most favorable to minor children. In this case, measures should have been taken against the parent to bring his will to the knee in order to fulfil the obligation of conduct incumbent. However, since modern enforcement procedures basically exclude direct enforcement of the person, they can only be threatened with legal disadvantage or directly carry out unfavorable acts against them, so as to force them to "seek benefits and avoid harms" and thus perform their temporary child-raising obligations. Specifically, if a parent who has been preemptively ruled to temporarily raise a child fails to perform his or her duty to support the child, the people's court may, in accordance with the provisions of Article 61 of the Civil Procedure Law, take compulsory measures such as fines and detention to obstruct the civil lawsuit. If the party who has been preemptively ruled to temporarily raise the child still fails to perform within the performance period determined by the people's court, the people's court may, in accordance with article 111 of the Judicial Interpretation of the Civil Procedure Law, again take compulsory measures against him such as fines and detention to obstruct the civil procedure in accordance with article 505 of the Civil Procedure Law. It is necessary to note that if one of the parents still fails to perform after compulsory measures are taken, in addition to the crime of refusing to implement the effective judgment or ruling, it may also consider entrusting the relevant unit or other person to complete the act of temporarily raising the child by reference to the provisions of article 111 of the Civil Procedure Law based on the urgent practical need for child support, and the cost shall be borne by the parent who adjudicated the temporary maintenance. In this regard, articles 252 and 503 of the Judicial Interpretation of the Civil Procedure Law also stipulate that the maintenance obligation may also be determined to be completed by grandparents, maternal grandparents and other persons according to the actual situation, and the people's court may select a substitute performer. The amount of the performance fee shall be determined by the people's court on the basis of the specific circumstances of the case, and shall be paid in advance by the parent who has ruled for temporary maintenance within the specified time limit. If the advance is not paid, the people's court may enforce the fee. After the performance of the substitute is completed, the parent who ruled that the temporary maintenance may consult and copy the list of expenses and the main voucher to check whether the performance fee is incorrect.
2. Whether a child can claim maintenance from the other parent during the period of temporary maintenance
In judicial practice, after the divorce of the parents, the children may demand maintenance from the parent who does not directly raise them in accordance with articles 1084 and 1085 of the Civil Code. However, there is a dispute as to whether the temporary maintenance of the children is entitled to the other party to pay child support during the divorce proceedings when one parent has ruled that the temporary maintenance of the children is the right to demand the other party to pay child support during the divorce proceedings: one view is that since the temporary maintenance occurred during the divorce proceedings, it means that the parents have not yet divorced, but are still in the marriage relationship for the duration of the marriage, and the marital property is also in a state of joint ownership, and it remains the joint property of the husband and wife after being paid by one of the spouses to the other. Moreover, article 1085 of the Civil Code already stipulates that the payment of maintenance is predicated on divorce, so that the parent who temporarily raises the child has no right to claim maintenance from the other party during the divorce proceedings. According to another view, the obligation of parents to support their children is a legal obligation and has nothing to do with whether the parents divorced or during the divorce. Even if the parents have divorced, the form of joint support is only changed to one direct support by one party and indirect support by the other party. In other words, the other party should also perform the maintenance obligation by paying maintenance during the divorce proceedings.
In our view, although the temporary maintenance of the child by one parent is only a temporary relief in the litigation and does not mean that the judiciary finally determines which party will ultimately raise the child, in view of the fact that most of the parents are in a state of de facto separation during the divorce proceedings, the other party should pay the child maintenance during the divorce proceedings from the principle of the best interests of the minor children. This is also evidenced by the provision in article 43 of this Interpretation that minor children or adult children who are unable to live independently have the right to request payment of maintenance from their parents if one or both parents refuse to perform their obligation to support the children during marriage.
Summary: This article is excerpted from the First Civil Trial Division of the Supreme People's Court, edited by the Judicial Interpretation on Marriage and Family of the Civil Code of the Supreme People's Court (I) Understanding and Application" (People's Court Press, July 2021, First Edition).
Generally speaking, the exercise and fulfillment of the rights and obligations of parents over minor children and adult children who cannot live independently are based on the obligations and responsibilities of personal and property relations arising from the status of paternity. There is a natural blood relationship between parents and children, which has a human relationship, which reflects the law of the growth and continuation of human life. Parents are not only the natural and legal caregivers of their children, but also have the mission and responsibility to ensure the healthy growth of their children, and of course they should bear the primary responsibility for the survival and development of their children. China's Constitution, the Civil Code, the Law on the Protection of Minors and other laws clearly stipulate that parents have the right and duty to raise, educate and protect their minor children, and are not affected by whether the parents are married, unmarried, divorced, null and void of marriage or whether they are separated.
1. How to understand "during divorce proceedings, both parties refuse to support their children"
The reason why national legislation establishes the obligation to raise children as a legal obligation, which cannot be renounced or transferred, is generally based on the parent-child relationship formed by blood, maintenance and adoption, that is, the parent-child relationship. In addition to the obligation to raise children based on the relationship between parents and children, Article 1074 of China's Civil Code also stipulates that grandparents who can afford it have the obligation to support minor grandchildren whose parents have died or whose parents are unable to raise them. That is to say, grandparents and grandchildren are direct blood relatives of different generations, and a relationship of support and maintenance can be formed between them if the legal conditions are met. Paternity based on blood or adoption is not affected by the parents' marriage, unmarriedness, divorce, annulment, or separation. Only the parent-child relationship formed by the relationship of upbringing and education may be dissolved by the divorce of the stepparents. Correspondingly, in principle, whether or not the parents divorce does not affect the parents' joint maintenance obligation to the children, but it will change from the joint support of the children by the parents to the direct support of one parent and the indirect support of the other parent. Similarly, the obligation of grandparents to support grandchildren and grandchildren under the conditions prescribed by law is irrelevant to the marital status of the grandparents themselves.
As far as the refusal of both parties to perform the maintenance obligation is concerned, although the scope of "both parents" is not specified, it should be limited to "both parents"。 The reasons for this are: First, in theory, although there is indeed the possibility that grandparents or maternal grandparents refuse to perform their legal maintenance obligations, from the perspective of real life situations, it is very rare for grandparents and maternal grandparents to bear the obligation to support their grandchildren and maternal grandchildren but refuse to bear them, and there are almost no cases where both parties refuse to support their grandchildren or maternal grandchildren during divorce proceedings. It is therefore not necessary to regulate it through this article. Second, in the vast majority of cases, the parent who has a maintenance obligation to the child is the parent. Furthermore, parents are the main ones who refuse to fulfill their child support obligations. Therefore, from a problem-oriented point of view, this article only provides for the common situation of parents refusing to fulfill their obligations to support their children. Finally, from the point of view of textual interpretation, the expression used in this article is that "both parties" refuse to maintain "children". In common sense, "children" correspond to "parents", and "grandparents and maternal grandparents" should correspond to "grandchildren and grandchildren". If "both parties" include grandparents and maternal grandparents, the provision "grandchildren" shall be added to this article after "children". Since there is no expression "grandchildren and maternal grandchildren", the combination of the previous and subsequent expressions can also lead to the conclusion that "both parties" in this article refers specifically to "both parents".
The "refusal to support" here can be refined into two points: refusal and maintenance. There may be differences in understanding of what constitutes "refusal": one view holds that regardless of whether the parents have the ability to support the child or not, as long as the parents clearly indicate that they will not raise the child, it is "refusal to support" within the meaning of this article; According to another view, refusal to maintain should be limited to subjective unwillingness to do so without the capacity and conditions for support, and does not include situations where maintenance is objectively impossible without the capacity and conditions.
We believe that parents' obligation to support their children is a legal obligation based on the parent-child relationship, which is personal and ethical, and cannot agree on conditions or give up, let alone refuse on the grounds of lack of ability to support or conditions of support. Articles 1058, 1067 and 1084 of the Civil Code do not stipulate that parents should have the ability or conditions for support to perform their maintenance obligations. Whether from the perspective of doctrine or legal provisions, the parents' ability to support or the conditions of support are not a prerequisite for fulfilling the maintenance obligation, let alone a reason for refusing to perform the maintenance obligation. Even if there is a situation where the parents are unable to support the minor child, according to Article 1074 of the Civil Code, if the parents are unable to raise the minor child, the grandparents have the obligation to support the minor grandchild or maternal grandchild. However, this only increases the maintenance obligor, not exempts the parents from the maintenance obligation. What is a "maintenance obligation"? During the period of the parents' marriage and the period of unmarried cohabitation, the parents shall jointly bear the obligation to support the children by living with them. However, in the case of divorce, annulment or separation of the parents, since the parents do not live together, it is objectively impossible to jointly perform the obligation to support the child, so the child can only live with one of the parents, and one parent alone takes care of the child's daily life. Article 1084 of the Civil Code refers to it as "direct maintenance", while the other party provides indirect maintenance through the payment of maintenance and the exercise of visitation rights. Although the obligation to support children referred to in this article is limited to the period of divorce proceedings, before divorce, most of the parents no longer live together, so "maintenance" here should also refer to direct maintenance.
The reason why this article is limited to "during divorce proceedings" is that although parents may refuse to perform their obligation to support their children without suing for divorce or even without marital relationship, since these circumstances have not entered the judicial procedure, the people's court has no way of knowing or having the authority to deal with the refusal to perform the maintenance obligation in these circumstances based on the principle of no prosecution and no reason. Only if the parties file a lawsuit with the court, and after the court accepts it, it is found that both parents refuse to raise the child, it is necessary to deal with it through judicial interpretation. From the feedback from judicial practice, it can be seen that in most cases, the court finds through the acceptance of the case that both parents have not fulfilled their obligation to support the children in the divorce proceedings, so this article is limited to "the period of divorce proceedings". As for the term "children" referred to in this article, they mainly include minor biological children, adopted children and stepchildren in dependent education, with exceptions including adult children who are unable to live independently. It should be noted here that the obligation of parents to support their children has nothing to do with whether the child is born in wedlock, since, according to article 1071 of the Civil Code, children born out of wedlock enjoy the same rights as children born in wedlock.
II. How to understand "may first rule that temporary maintenance by one party may be held"
The controversy over the content of this article mainly focuses on how to interpret the phrase "may be ruled in advance to be temporarily maintained by one party". After combing through, there are roughly the following understandings:
First, the ruling that one party should temporarily raise the child is the basis for the judgment on who directly raises the child when both parents indicate that they will not raise the child in a divorce case. According to the relevant judgment documents retrieved, many judgment documents directly follow the provisions of Article 1993 of the 20 Opinions on Child Support in Divorce Cases (that is, the content of this article), and the judgment is that one of the parents should directly raise the children.
Second, the ruling that the temporary custody of one party is understood as a manifestation of conduct preservation, holding that since parents have a statutory maintenance obligation to their children, and the maintenance obligation is mainly manifested in paying maintenance or directly taking care of daily life, which is essentially an act of payment, in the absence of a judgment, in order to ensure that the children are not adversely affected by the parents' refusal to perform the maintenance obligation during the divorce proceedings, one of the parents may be ordered to perform certain acts according to Article 100 of the Civil Procedure Law. That is to say, the act of maintenance referred to in this article that preemptively adjudicates the temporary maintenance of one party.
Third, from the perspective of functional role, the temporary maintenance of one party should be regarded as a prior enforcement measure. By forcing one of the parents to temporarily perform the maintenance obligation and maintain the child's normal life, it is possible to avoid the hardship caused to the child's life if both parents refuse to perform the maintenance obligation during the divorce proceedings.
Among the above views, we are more inclined to believe that under the current legal framework, the legal nature of "prior ruling temporary maintenance by one party" in this article is similar to the preservation of conduct.
Since both parents indicated to the court during the divorce proceedings that they refused to take care of the child directlyMaintenance, showing indifference to the maintenance of children during divorce proceedings, usually does not take the initiative to apply to the court to rule that the children are temporarily maintained by one party.Under such circumstances, proceeding from the principle of the best interests of the child, it is necessary for the people's court to promptly and ex officio to rule that one of the parents shall temporarily raise the child. In this regard, only the temporary upbringing of the ruling by one of the parents is interpreted as a preservation of conduct, which is consistent with the current legal provisions.
[Issues that should be paid attention to in trial practice]
Although in judicial practice, it is rare for people's courts to apply this article, what needs to be considered is what should be done if one of the parents refuses to enforce the ruling, and whether the party who does not need to temporarily raise the child should pay child support during the period of temporary maintenance after enforcement. A simple analysis of this is as follows:
1. Deal with when one of the parents refuses to carry out the ruling of the people's court temporarily raising the child
Although this article stipulates that during divorce proceedings, if both parents refuse to raise the child, the people's court may first rule that one of the parents should temporarily raise the child, but this article does not stipulate what to do if one of the parents does not raise the child as required by the ruling. In this regard, there is a view that the parents' obligation to support their children stems from the parent-child relationship between parents and children, which is of a personal nature, so even if the above-mentioned situation of not raising children in accordance with the requirements of the ruling occurs, it cannot be enforced against one of the parents; Another view is that the nature of a ruling of temporary maintenance by one parent is a ruling of preservation of conduct, which has already taken legal effect and has the content of payment, and can be used as a basis for enforcement when one of the parents fails to perform his or her obligations.
We believe that the enforcement of the ruling of the people's court to temporarily raise the child by one parent is essentially the enforcement of the completed act that the person subject to enforcement should perform. In the theory of execution, acts can be divided into fungible acts and non-fungible acts according to whether they can be performed by a third person. If, from the creditor's point of view, the economic and legal effects of performance of an obligation do not depend solely on the fulfilment of the obligation by the debtor itself, the act may be carried out by a third person, i.e. a substitute act. In addition, from the debtor's point of view, the fungible act must also be one that is legally permitted to be committed by a third person. For example, mechanical activity (painting walls) that does not depend on a particular level of intelligence or physical condition is often a substitute behavior. An act is irreplaceable if, for the creditor, the economic or legal effects of performance depend precisely on the debtor's personal performance. As far as the people's court ruled that the temporary upbringing of the child by one parent falls within the scope of payment behavior, from the perspective of the child's emotional dependence on the parents and blood connection, it is obvious that the act of personal performance of support by one parent is generally more conducive to the healthy growth of the child than the substitute upbringing of others, and is more in line with the principle of the most favorable to minor children. In this case, measures should have been taken against the parent to bring his will to the knee in order to fulfil the obligation of conduct incumbent. However, since modern enforcement procedures basically exclude direct enforcement of the person, they can only be threatened with legal disadvantage or directly carry out unfavorable acts against them, so as to force them to "seek benefits and avoid harms" and thus perform their temporary child-raising obligations. Specifically, if a parent who has been preemptively ruled to temporarily raise a child fails to perform his or her duty to support the child, the people's court may, in accordance with the provisions of Article 61 of the Civil Procedure Law, take compulsory measures such as fines and detention to obstruct the civil lawsuit. If the party who has been preemptively ruled to temporarily raise the child still fails to perform within the performance period determined by the people's court, the people's court may, in accordance with article 111 of the Judicial Interpretation of the Civil Procedure Law, again take compulsory measures against him such as fines and detention to obstruct the civil procedure in accordance with article 505 of the Civil Procedure Law. It is necessary to note that if one of the parents still fails to perform after compulsory measures are taken, in addition to the crime of refusing to implement the effective judgment or ruling, it may also consider entrusting the relevant unit or other person to complete the act of temporarily raising the child by reference to the provisions of article 111 of the Civil Procedure Law based on the urgent practical need for child support, and the cost shall be borne by the parent who adjudicated the temporary maintenance. In this regard, articles 252 and 503 of the Judicial Interpretation of the Civil Procedure Law also stipulate that the maintenance obligation may also be determined to be completed by grandparents, maternal grandparents and other persons according to the actual situation, and the people's court may select a substitute performer. The amount of the performance fee shall be determined by the people's court on the basis of the specific circumstances of the case, and shall be paid in advance by the parent who has ruled for temporary maintenance within the specified time limit. If the advance is not paid, the people's court may enforce the fee. After the performance of the substitute is completed, the parent who ruled that the temporary maintenance may consult and copy the list of expenses and the main voucher to check whether the performance fee is incorrect.
2. Whether a child can claim maintenance from the other parent during the period of temporary maintenance
In judicial practice, after the divorce of the parents, the children may demand maintenance from the parent who does not directly raise them in accordance with articles 1084 and 1085 of the Civil Code. However, there is a dispute as to whether the temporary maintenance of the children is entitled to the other party to pay child support during the divorce proceedings when one parent has ruled that the temporary maintenance of the children is the right to demand the other party to pay child support during the divorce proceedings: one view is that since the temporary maintenance occurred during the divorce proceedings, it means that the parents have not yet divorced, but are still in the marriage relationship for the duration of the marriage, and the marital property is also in a state of joint ownership, and it remains the joint property of the husband and wife after being paid by one of the spouses to the other. Moreover, article 1085 of the Civil Code already stipulates that the payment of maintenance is predicated on divorce, so that the parent who temporarily raises the child has no right to claim maintenance from the other party during the divorce proceedings. According to another view, the obligation of parents to support their children is a legal obligation and has nothing to do with whether the parents divorced or during the divorce. Even if the parents have divorced, the form of joint support is only changed to one direct support by one party and indirect support by the other party. In other words, the other party should also perform the maintenance obligation by paying maintenance during the divorce proceedings.
In our view, although the temporary maintenance of the child by one parent is only a temporary relief in the litigation and does not mean that the judiciary finally determines which party will ultimately raise the child, in view of the fact that most of the parents are in a state of de facto separation during the divorce proceedings, the other party should pay the child maintenance during the divorce proceedings from the principle of the best interests of the minor children. This is also evidenced by the provision in article 43 of this Interpretation that minor children or adult children who are unable to live independently have the right to request payment of maintenance from their parents if one or both parents refuse to perform their obligation to support the children during marriage.
