Article 42: "Child support" as used in Article 1067 of the Civil Code includes expenses such as children's living expenses, education expenses, and medical expenses.
【Purpose of the Article】
This article is about the specific content of "child support".
[Interpretation of Provisions]
"Child support" refers to the cost of raising a child. As a legal concept, the term "alimony" first appeared in the Marriage Act of 1980, article 15, paragraph 2, of which provides that "a minor or unable to live independently shall have the right to demand maintenance from his or her parents when their parents fail to fulfil their maintenance obligations". When the Marriage Act was amended in 2001, this provision was changed to article 21, paragraph 2, and the content was not amended. Paragraph 1 of Article 1067 of the Civil Code of 2020 stipulates that "if the parents fail to fulfill the obligation to support them, the minor children or adult children who cannot live independently shall have the right to request the parents to pay child support", which improves the expression of the Marriage Law and amends "children who cannot live independently" to "adult children who cannot live independently", without making substantial changes to the original legal provisions.
Neither the Marriage Law nor the Civil Code directly stipulates what exactly is included in child support. Although the newly amended Law on the Protection of Minors stipulates that the parents of minors shall perform the duty of providing protection for minors in terms of life, health and safety, it does not stipulate child support. Alimony changes with the development of the economy and society, and the specific scope is gradually clarified in judicial practice. Article 13 of the Marriage Act 1950 stipulates that parents have an obligation to raise and educate their children, and a special chapter provides for "the maintenance and education of children after divorce". Article 21 stipulates that "after a divorce, the husband shall bear all or part of the necessary living and education expenses for the children raised by the woman, and the amount of the expenses and the length of the period shall be agreed upon by both parties". This provision was an early provision on the scope of alimony. Article 15 of the Marriage Act 1980 stipulates that parents have an obligation to raise and pay maintenance for their children, and article 30 stipulates that after divorce, the non-supporting parent shall bear part or all of the necessary maintenance and education expenses for the children. The 1993 Opinions on Child Support in Divorce Cases stipulate that the amount of child support may be determined on the basis of the actual needs of the children, the affordability of both parents and the actual standard of living in the locality. Where the amount of the original amount of child support is not sufficient to maintain the actual standard of living in the locality, or where the actual needs have exceeded the original amount due to the child's illness or schooling, the child's request for an increase in the child support fee shall be supported if the parent has the ability to pay. This effectively includes the cost of living, education and medical care in the scope of alimony. In December 2001, Article 21 of the Judicial Interpretation (I) of the Marriage Law stipulates that "the term 'child support' as used in Article 21 of the Marriage Law includes expenses such as children's living expenses, education expenses, medical expenses, etc." This is the first time that a judicial interpretation has made clear provisions on the scope of alimony. In August 2011, Article 3 of the Judicial Interpretation (III) of the Marriage Law stipulates that if both parents or one of the parents refuses to perform the obligation to support the child during the existence of the marital relationship, and the minor or incapable child requests the payment of child support, the people's court shall support it, further confirming the obligation of the parents to bear the maintenance fee during the marriage.
The "maintenance" provided for in this article corresponds to the content of Article 1067, Paragraph 1 of the Civil Code, where the obligation of "maintenance" includes the responsibility of taking care of life, education and protection, etc., continuing the provisions of the previous Marriage Law on maintenance. Therefore, the scope of "child support" is still defined as "including children's living expenses, education expenses, medical expenses, and other expenses".
One is the cost of living. It is the basic duty of parents to provide their minor children with the necessary material living conditions and to take care of their daily lives. Living expenses refer to the expenses necessary to maintain the daily life of the children, such as necessary clothing, food, housing and transportation.
The second is education expenses. It is also the duty of parents to keep their children in school. According to the provisions of the Compulsory Education Act, parents must ensure that their children of school age are enrolled in school on time and receive compulsory education for a specified number of years. For a long time, the scope of education expenses recognized in judicial practice is mainly the education expenses of high school, junior high school and primary school, including tuition fees, book fees and related expenses of the education programs that children must receive. Additional education expenses beyond basic education, such as the fees for various remedial classes, interest classes, extracurricular classes, and various school choice fees, are often not included in the scope of education expenses, and are determined by the parents of minors through consultation. There are no specific provisions on pre-school and higher education fees, which are worth exploring. At present, although pre-school education does not belong to the national compulsory education, but has been more popular, the state also attaches great importance to the pre-school education of school-age children, in order to protect their right to receive pre-school education, the pre-school education law being drafted by the relevant departments intends to standardize pre-school education as a part of the national education system, so the pre-school education fee is included in the scope of maintenance is in line with the national conditions and actual needs. Whether or not the cost of higher education is included in the maintenance expenses borne by the parents should be decided on the basis of the needs of the child and the affordability of the parents. At present, it is a common situation that children go on to university after graduating from high school, and because they do not have economic accumulation and stable employment opportunities, their tuition and living expenses during school are borne by their parents. Although individuals work part-time to earn tuition fees or take out loans to help them at university, it is relatively rare for them to become financially independent by breaking away from their dependence on their parents. Therefore, with an eye to the present and the future, it is advisable for parents who can afford to support their children during their university years, but at the same time, society should create employment opportunities for university students and encourage them to be as self-reliant as possible.
The third is medical expenses. It is the duty of parents to protect the healthy growth of their minor children, and the expenses for the treatment of minor children's illness are within the scope of child support and shall be borne by the parents. Medical expenses include medical expenses, hospitalization fees and diagnosis and treatment fees, such as registration fees, examination fees, laboratory fees, surgery fees, treatment fees, hospitalization fees and medicine fees. At present, the basic medical insurance in mainland China has basically achieved full coverage, and the basic medical insurance premiums for residents and the new rural cooperative medical insurance premiums that minors should pay should be borne by their parents. In addition, commercial insurance, supplementary medical insurance, etc., are not covered by child support.
It should be noted that the "etc." in the context of "equal expenses" in this article should be understood as "extra-equal expenses". This is to take into account that the needs of the child and the circumstances of the dependents may change during the period of support, and leave room for the increase or decrease of child support in the form of "equal expenses".
The determination of alimony should follow the principles of necessity, reasonableness and contributory. First, the scope of maintenance is mainly determined according to the actual needs of the minor children. The needs of minors are diverse and volatile in the process of growing up, and the basis for judging which needs can be included in child support and which cannot be included is actual needs. There are two main levels, one is the general life, education and training, and medical and health needs of ordinary people; The second is the special needs of specific individuals, such as disabled children who need wheelchairs, hearing aids and other living aids, and who need treatment when they are sick. Second, the amount of child support should be comprehensively considered and reasonably determined in light of specific factors such as the actual needs of the children, the parents' affordability, and the local living standards. It is necessary to ensure the maximization of the interests of minors, but also to avoid extravagant payments that are ahead of the curve, or payments that are too low. Third, the maintenance is jointly borne by the parents. It is the joint responsibility and obligation of parents to raise minor children, and maintenance needs to be borne by both parents. Of course, if one of the parents has the ability to support the parent and is willing to bear it alone, it does not violate the law. For non-essential expenses, such as living expenses such as insurance premiums and travel expenses that exceed the ordinary consumption level, training fees, school selection fees, and medical expenses beyond the normal standard of treatment, one parent should negotiate with the other party and obtain consent before deciding to pay for it. If, without consultation, one of the parents decides to adopt the high-fee plan without consultation, in principle, that parent shall bear the corresponding expenses.
In summary, living expenses, education expenses, medical expenses and other expenses are indispensable components of raising children so that they can grow up healthily. When hearing cases related to disputes over child support, the people's courts should give full consideration to the mainland's national conditions and economic development conditions, and resolve the disputes in a realistic and reasonable manner.
[Issues that should be paid attention to in trial practice]
1. The scope of child support is necessary for the daily life, education and health of the minor child, and if the expenses exceed the necessary range, one parent shall consult with the other parent in advance and obtain his or her consent. For example, after Luo (the man) and Dong (the woman) divorced, the boy Luo was raised by Dong, and Luo paid a certain amount of maintenance every month. Luo Moubing was not admitted to a key high school due to his poor test scores, and Dong paid tens of thousands of yuan in school choice fees without discussing with Luo in order to let his child go to a key school. Later, Dong asked Luo to pay half of the school choice fee, and Luo said that he was unable to pay due to the difficulties of life after being laid off. Dong then asked his son to sue Luo, asking the court to order Luo to pay half of the school choice fee. After trial, the court held that after Luo and Dong divorced, they had been paying Luo Moubing child support on time according to the original amount. Dong did not reach an agreement with Luo on the basis of consultation, and paid tens of thousands of yuan in school choice fees without authorization, and Luo was not a necessary education fee due to the difficulty of living after being laid off, so the judgment rejected Luo Moubing's litigation claim.
2. The scope and amount of living expenses should focus on the actual needs of the children, and should also be consistent with the affordability of both parents and the actual living standards of the locality. For example, when Mei (the woman) and Li Moujia (the man) divorced, it was agreed that Mei would raise her daughter Li Mouyi, and Li Moujia would pay 1,500 yuan per month plus Li Mouyi's long-term medication. In July 2014, Li Mouyi had blurred vision, and Mei took him to Tianjin and Beijing hospitals to see a doctor, and when the hospital refused to accept him, he found the Beijing Armed Police General Hospital for retinal reduction surgery, which saved the weak vision of his right eye. Li Mou B sued the court, demanding that Li Mou A bear all or most of Li Mou B's medical expenses, hospitalization expenses and other expenses. The court held that Li Moujia's monthly alimony of 1,500 yuan to Li Mou B had included part of the medical expenses, but because the actual expenses and needs for Li Mou's treatment had indeed increased compared with the time when the agreement was signed, and considering the actual income level and living conditions of Mei and Li Moujia, it was determined that Li Moujia should bear 50% of the medical expenses, transportation expenses, accommodation expenses, and escort expenses incurred by Li Mou B during his illness.
3. The actual needs of the child are not fixed or the same for everyone, and should be analysed on a case-by-case basis. For example, when Wu (the woman) and Gan A (the man) divorced, it was agreed that Wu would raise his daughter Gan B, and Gan would pay 1,100 yuan per month in child support. Later, Gan Mouyi sued the court, claiming that he suffered from moderate depression in his third year of high school and could not attend classes normally, so he participated in one-on-one make-up classes, which was the education expenses incurred by being forced to make up classes due to illness, and demanded that Gan Moujia bear them. The courts have different understandings of this. The court of first and second instance held that the make-up fee was not a reasonable expense that Gan X B would inevitably incur due to study, and that Gan X A did not need to share the make-up class fee; The retrial court held that Gan Mouyi was in the critical stage of his third year of high school, and that one-on-one make-up learning was indeed necessary when he was unable to attend classes normally due to moderate depression. For another example, when Li (the woman) and Ma Xiao (the man) divorced, it was agreed that the legitimate son Ma XX would be raised by Li, and Ma Xiao would pay 1,500 yuan per month in child support, and increase the child support fee every year as appropriate according to the circumstances; Ma's expenses in study, medical care and other aspects are jointly borne by both parties. In 2010 and 2012, Ma Moumou participated in a children's Go training in Beijing, with a total expenditure of 11,105 yuan in education expenses, and in 2010, 2011, and 2013, Ma Moumou participated in a school study tutorial class, with a total expenditure of 11,105 yuan in education expenses. The court held that in order to protect the interests of minors and promote their all-round physical and mental development, the law appropriately encourages minors to participate in certain extracurricular tutoring courses according to their personal talents and hobbies. In this case, Ma Moumou participated in Go tutoring classes for a long time, starting from the existence of his parents' marital relationship until after his parents divorced, Ma Xiao agreed to this during the existence of the marital relationship, and did not explicitly object to it after the divorce; At present, there is a lack of evidence to prove that the Go class does not match Ma's interests, and Ma's litigation claim is supported in accordance with the law.
It should be noted that in judicial practice, some judgment documents are not rigorous enough in the expression of child support, and use child support with child support or living expenses in the same way. "Childcare" was first stipulated in the Marriage Law of 1950, and the concept of "child support" was used in the 1993 Opinions on Child Support Issues in Divorce Cases, which is an abbreviation of the obligation of parents to raise and educate. After the promulgation of the judicial interpretation in 2001, the concept of consistency with the law should be used in accordance with the new provisions to avoid differences of understanding and new disputes in the future.