Chinese Enforcement Experience in Child Support and Family Maintenance Ningning Zhao(Claudia) Hong Kong,November, 2015 Partner Jincheng Tongda & Neal Shanghai Law Office Mobile ： ：

Abstract Within the family members shall respect, help one another, maintain equal, harmonious and civilized marriage and family relations. Husband and wife shall maintain each other, parents shall bring up and educate children; children shall support parents. Chinese laws confer family members rights to claim for support or maintenance from the parties who bear the duty but fail to do so. In the practice of enforcement of support or maintenance, there exist challenges and difficulties in realizing the rights and interests of whom should be supported or maintained.

Cases on Enforcement Case 1: Crime of Abandonment Case 2: Executed by Court Case 3: Restraint of Exit

Crime of Abandonment During marriage, the wife was diagnosed with chronic dementia and could not take care of herself in daily life. The husband refused to pay any medical cost and living cost for her. The husband was sued and ordered to pay alimony for the wife. The husband was instituted public prosecution due to his refusal to fulfill his duty in marriag was sentenced of 5 month detention for his abandonment. Whoever refuses his proper duty to support an aged, minor, sick person or any other person who can not live independently shall, if the circumstances are flagrant, be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance.(Article 261 Criminal Law of PRC)

Crime of Abandonment Husband and wife shall have the duty to maintain each other. If one party fails to perform this duty, the party in need of maintenance shall have the right to demand maintenance payments from the other party. (Article 20 of Marriage Law of the People’s Republic of China) During the existence of marriage, if one party of the couple claims for division of jointly owned assets, the Chinese People’s Court does not support the claim with the exception that one party suffering serious disease needing treatment but the other party refuse to pay for the medical cost.( Article 4 of the Supreme People’s Court’s Interpretation of Certain Issues Concerning the Application of the Marriage Law of PRC (Part Three))

Execution by Court When the father and the mother divorced in 2008, their four children have grown up. Due to the financial difficulty the father ask for living cost from his four children, he’s refused. Then the father sued his four children for living support. The father was supported by the court. However only eldest son was able to pay for the father living cost but he refused to do. The father applied for the execution of the court judgment, but the eldest son ignored it. Finally the eldest son paid after 15 day detention.

Execution by Court Children shall have the duty to support and assist their parents. If children fail to perform their duty, parents who are unable to work or have difficulties in providing for themselves shall have the right to demand support payments from their children. (Article 21 of Marriage Law of PRC)

Restraint of Exit The child was born in December, The father and mother divorced in June While divorce, the two parties reached agreement that the mother got the custody and the father pay for the child. Then the father was restrained from exiting China because he refused to pay the cost. If the person against whom a judgment or order is being executed refuses to fulfill his duty in judgment or order, the People’s court may notice relevant organs to restrain him from leaving China, or publicize his refusal to fulfill the legal duty by media, credit system or other legal measures. ( Article 255 of Civil Procedural Law of PRC)

Chinese Enforcement Measures Report Property Status Make Inquiries with Property Withdraw or Withdraw Part of Income Seal up, Distrain, Freeze, Sell by Public Auction, or Sell off Part of the Property Pay Double Interest on the Debt Impose a Fine or Detain Exit Restrictions Record the Nonperformance in Credit System Restrict High Consumption

Ningning Zhao Thank you