What is the family standard

At the end of the Qing Dynasty and the beginning of the Republic of China, there was a major change in the law of China. The reason why it is called a major change is that it touches on the issue of the law, which has never been touched by the successive dynasties of China, and is not likely to be touched. It is generally believed that the essence of law is the central concept of law. (1) "If the law is a purely natural law, there is no central idea in it; if the law is a purely man-made norms, the central idea can be permanent, and can also be changed arbitrarily. However, law is a man-made norm of nature. Therefore, it has its central conception, and its central conception changes with the evolution of society." (2) "The basic conception of civil law, that is, the basic role, or the basic task of civil law, is called by scholars as the essence of civil law". (3) In ancient times, the basic content of law was to stipulate the obligations of the members of the society, and therefore, the scholars called it obligation-based. In modern times, the laws of some countries have been based on the rights of the members of the society, and the scholars call the laws of modern times the rights-based laws. In modern times, when the interests of society must be emphasized, it is believed that the era of society-based law has begun. The Japanese jurist Shigenori Hotoke expressed it as follows: "When the individual is not yet conscious, the law is duty-based; when the individual is conscious, the law is rights-based; when the society is conscious, the law should be society-based, and now this third period has begun?" (4) Accordingly, the history of the development of law has gone through a process from the duty-based to the rights-based to the social-based.

However, there are a series of questionable points in these discussions. First of all, what is the primacy of law? If a law is based on obligation, it is obligation-based. Then, obligation and right are relative categories, and stipulating obligation is stipulating right, so what is the substantive difference between obligation-based and right-based? The essence of the duty-based law is that the law only recognizes that a minority or even a single person enjoys full rights, i.e., human qualifications, while the majority of people do not enjoy or only enjoy incomplete rights, i.e., they do not enjoy human qualifications; in fact, it is only recognizing a minority or even a single person as a human being and not recognizing the majority of people as human beings. Thus, the duty-based approach is essentially impersonal. The essence of the rights-based law is that the law recognizes that all natural persons enjoy the qualification of a human being, which in fact means that all natural persons are recognized as human beings. Therefore, the rights-based law is essentially a person-based law. (5) Secondly, although the ancient laws were united in the system of all the laws, there were still different adjustment scopes in practice. Except for ancient Rome, there was no independent civil law in ancient times. But the ancient legal relations include equal property relations and equal personal relations between private persons. In such relations, the parties enjoyed the qualification of human beings. Of course, in the ancient private relations, there were unequal factors, such as the relationship between husband and wife; in addition, the claim to the debtor's person, so that the debtor's personality can be changed. The law that regulates the property and personal relations between private persons is the ancient civil law. In fact, the ancient civil law is incomplete people-oriented, that is, the rights-based. It can be seen, can not be generalized that the ancient law are obligation-based. Again, the social standard is not higher than the right standard. The social standard is a category relative to the individual standard (6), while the rights standard is a category relative to the duty standard. Both the social and the individual are rights-based, the difference being that the individual-based law is less restrictive of the individual, whereas the social-based law is more restrictive of the individual. But both limitations are equal to the individual limitations, is in different economic conditions to realize the equality of natural persons personality in different ways. The individual standard is the first primary stage of the rights standard, and the social standard is the advanced stage of the rights standard. (7) China's civil legislation at the end of the Qing Dynasty and the beginning of the civil law is mainly based on the German civil law as a blueprint, and the German civil law is characterized by the importance of social interests, so when it comes to the issue of civil legislation, scholars believe that it should be adapted to the world trend, and adopt the social standard. But the traditional social influence on different legal departments is different. "the legislation of kinship law, there has been a family doctrine (the principal) (8) and individualism (the principal) of the opposition". (9) "Family-oriented law, such as our country, father and father, son, husband and wife, each from their position in the family to determine what they should not be. The concept of rights is a product of individualism, and fathers and sons and husbands and wives each have equal and independent personalities and are able to determine their own status in accordance with their own wishes. (11) In the process of development of national laws, the law of identity (kinship law) generally lags behind the law of property. While property legislation has begun to shift from the individual to the social, kinship legislation is still debating whether it should be rights-based or obligations-based. The process of modernization of kinship law is the process of family-based to personal-based transformation.

The process of modernization of China's kinship law is centrally manifested in the process of formulating the kinship division of the Civil Law. In the process of preparation of kinship law, the adoption of family-based or individual-based has been the focus of controversy. However, the research on this issue is limited to a simple characterization of the essential differences between the family-based and individual-based and the specific performance in the legislation is little involved. In the author's view, family-based and individual-based is a crucial issue in the legislation of kinship, accurately defining the difference between the two, clarifying the draft law of kinship legislation and its specific performance, is the key to explore the process of modernization of the law of kinship.

Second, the meaning of family-based and personal-based

Family-based and personal-based are the basic categories of kinship jurisprudence, but the exact meaning of the two, it is difficult to query in the existing works. "In the family doctrine, husband and wife, parent-child relationship, are in the family doctrine as a vein. In individualism, only the law of kinship provides for the relationship between husband and wife, parent and child, and so on, and there is no such thing as the family." (12) "Individualism takes the individual as the unit of the state, while familialism takes the family as the unit of the state; the individualist adopts the provisions of the law, which provides for a residence but not a home, and for kinship but not parental family relations; on the contrary, the familialist adopts the family as an alternative to the kinship, and recognizes the existence of a home". (13) Similar arguments do not really clarify the difference between the two.

Simply put, the family standard is a hierarchical standard, under the family standard, there is a distinction between parents and family members, family members are not full subjects, do not enjoy full personality. The individual standard is a non-hierarchical standard, and under the individual standard, parents and family members are just a kind of customary name, which has no significance in terms of personality, and all members of the family are full subjects, enjoying full personality. The dichotomy between the duty-based and the right-based is manifested in kinship law by the dichotomy between the family-based and the individual-based. In fact, the debate between the family and the individual is centered in the kinship legislation.

In order to further understand the meaning of the family unit, two concepts need to be clarified. First, the meaning of "family" in the "family standard". The authoritative "Modern Chinese Dictionary" interpretation of the "family" as: "based on blood relations and the formation of social organizations, including several generations of the same lineage." But this is not the meaning of "family" in "family-oriented". The legal term "familialism" is not an original Chinese word, but is a Chinese character that was introduced from the Japanese language during the transplantation of foreign laws. The meaning of the Chinese character "家族" in Japanese and Chinese has both similarities and differences. "The existing family system in China is different from the existing family doctrine in Japan," and "Japan has always had a family law but not a patriarchal law, and the patriarchal law is in the family". Therefore, "even though the family system is adopted, the clan should be the clan and the family should be the family, so that the family system is compatible with the Chinese family system". (14) In a nutshell, our country under the patriarchal system of family-based "family", is the "cohabitation **** wealth" kinship groups. "Cohabitation" is its most obvious characteristic. Therefore, our "family standard" is essentially a "family standard" and has nothing to do with "clan" in the usual sense. Of course, under the patriarchal system, the interests of the "family" and the "clan" are essentially the same. Secondly, the difference between the "family standard" in Roman law and our traditional kinship law. Although the Roman law of kinship law and our traditional society of kinship law are family-oriented legislation, but the specific connotation of the two are not the same. In Roman law, relatives are divided into legal relatives, blood relatives and in-law relatives. Among them, the legal kinship is the kinship relationship which is completely based on the provisions of the civil law, that is, the patrilineal kinship relationship. This type of kinship is male-centered and based on patriarchal authority. Since blood relations are not taken into account, they are fictional kinship. Blood relatives are those who are related by blood, both patrilineal and matrilineal. Blood relatives are also subject to parental authority if they live in the same family. The affinity is a kinship arising from marriage, which is of little significance in Roman law.

In ancient Rome, the term "family" (domus or famila) initially referred to all persons and things under the patriarchal authority (patria potestas). The law, in its primitive state, made no distinction between persons and things. With the development of society, a variety of rights were broken down from patria potestas. These included the right to own things, the right to own slaves, the right to own wives, and the right to buy labor. (15) The Roman family consisted of the head of the family, the wife, the children and other members. Once the head of the family died, the family under the dominion of the head of the family was dissolved. The provisions of the "family" are essentially the provisions of the parental authority; and the so-called "family standard" is essentially the parental standard. The provisions of Roman law on the family and its members essentially established the right of the parents to dominate the family, the personal dependence of the family on the parents, and the limitation of the personality of the family. In Roman law, the right to property belongs to the parents, the family does not have the right to property. (16)

The Chinese family (home) also exists in the parents, parents and family members of the same personal dependence. But unlike Roman law, the law did not directly provide for parental authority. The head of the family is the eldest member of the family, who is the representative of the family and has the right to manage the family's property, but cannot dispose of the family's property at will. Cohabitation*** is an essential element of family life in China. All members of the family are the owners of the family property.

Therefore, the Roman law of parental authority and the traditional kinship law of China's parental authority has both *** and difference. The *** nature is that both have the nature of identity rights. The difference is that, in terms of property relations, Roman law parental authority is manifested in the parent's ownership of all the family's property, while the parental authority of our traditional kinship law is manifested in the parent's right to administer all the family's property. Roman law and our traditional kinship law of familialism, both are to maintain the personal dependence of the family, but in the property relations, the former maintains the parent's personal ownership of the property relations, while the latter maintains the family members of the property relations **** have. In Roman law and our traditional law of kinship, the transformation of family to individualism, are the negation of parental authority, are denied in the family of personal dependence; but in the property relations, Roman law is to deny the personal ownership of the parents of the family property relations, while in our traditional law of kinship, is to deny the parents of the family **** have unequal management of property relations.

It is necessary to point out that the general view that the "family" in Roman law, is the form of parental identity and ownership of the existence of the right, is not the subject of the law; and our traditional law of kinship in the "family", is the connection between the state and the individual entity, is the legal Subject. By recognizing the status of the family, the law recognizes the family's status as a subject. "There are two doctrines adopted in the codification of the law of kinship. In the case of the family-based approach, the law recognizes the status of the family by providing for family relations in addition to kinship relations. The individual becomes the family, and the family becomes the nation. The individual is an indirect constituent of the state, while the family is the direct constituent of the state. The so-called dualists are also". "In our old law, the family was an independent personality, capable of enjoying its rights and obligations independently, but today, the various constituent elements of the family can enjoy their rights and obligations independently, and the family is not recognized as having a personality." (17) Accordingly, the transformation of familialism into individualism is manifested in the denial of the status of the family as the main body of the kinship law in China. This view is questionable.

The subject in law is the bearer of rights and obligations. Rights are legally recognized qualifications, enjoy a certain right, is available for a certain behavior. Obligations are legally recognized behavioral mandatory qualifications, undertake a certain obligation, that is, must be a certain behavior. Behavior is the manifestation of will. Any behavior is the manifestation of a single will. Therefore, the same subject cannot have more than two wills at the same time. This means that the subject must be monist, the subject of the joint can not become the subject. The "family" in our traditional kinship law is the union of the parent as a full subject and other family members as an incomplete subject, and it is a property***owned group in which the parent enjoys the right of management, and the bearers of rights and obligations are not the "family" but the family members. Therefore, the "family" of our traditional kinship law, like the "family" of Roman law, is not a legal subject. The provisions of the law on the "family" never stipulate its subjective qualifications, but rather the legal relations among family members, including identity and property relations, only that the content of such identity and property relations varies from country to country and from time to time. The so-called legal status of the family was in fact a pseudo-concept, and the correct formulation should be that family members had a legal status and that legal relations between family members were protected by law. Therefore, the question is not whether the law expressly recognizes the status of the "family", but what status of the "family" is recognized by the law.

Of course, the family of Roman law and our traditional kinship law, although there are differences in the family, the essence is still **** the same: the family of kinship law is hierarchical, the status of relatives is not equal, there is a personal dependence between them; and personal kinship law is the law of equality, the legal status of relatives is equal, there is no personal dependence. Therefore, the so-called "family-based" to "personal-based" change, in essence, is the status of relatives from unequal to equal change, from personal dependence to no personal dependence.

It is worth mentioning that the personal status adopted by the legislation on kinship in the early capitalist countries was incomplete, which is reflected in the fact that full equality of status in kinship relations was not realized, and personal dependence still exists to varying degrees. The so-called lagging and conservative nature of kinship law means that the process of realizing equality of status in kinship is longer than the process of realizing equality of subjective qualifications in property law. Individual-based is not the end of kinship legislation, with the development of society, individual-based will evolve to social-based.

Third, the end of the Qing dynasty and the beginning of the successive relatives of the draft law of the legislative base analysis

China since the end of the Qing dynasty, the establishment of the revision of the Law Museum, compiling the "Qing Civil Law Draft" began to the final completion of the Legislative Yuan of the National Government civil law code, during which has promulgated the civil law of relatives of the draft **** there are four, respectively: (1) the Qing Civil Law Draft relatives of the draft is also known as the "First Draft of the Civil Law"; (1) the Qing Civil Law Draft relatives of the first draft of the Civil Law; (2) the Qing Civil Law Draft relatives of the first draft of the Civil Law of the Qing dynasty; (3) the Qing Civil Law Draft relatives of the first draft of the Civil Law of the Qing dynasty. The first draft of the civil law; (2) the fourth year of the Republic of China's civil law relatives of the draft; (3) the fourteenth year of the Republic of China's civil law relatives of the draft, the draft is also known as the second draft of the civil law (hereinafter referred to as the second draft of the civil law); (4) seventeen years of the Republic of China's Legal Affairs Bureau of the relatives of the draft law. Although these four drafts have not been formally implemented, but the analysis of its choice of legislation, the process of modernization of China's kinship law is still of great significance.

Successive drafts of the Civil Code adopted the relatives of the legislative base, historical records are not the same. Mr. Shi Shangkuan in the book on kinship law, on the principle of the legislation of kinship law, there is the following description: "I to the family as a unit of social organization, the former Qing dynasty law museum compilation of kinship law, that is, to take the family doctrine, and in the marriage of parents and children before, crowned with a chapter of the family system. However, since the industrial revolution, the family system has been gradually shaken, the second draft of the kinship law, the family system and take individualism, the third draft of the family system, the fourth draft of the individualism. The pros and cons of the draft were widely discussed, and no one could agree on them." (18) Shi's view, the first four drafts of the law of relatives, the first and third take family doctrine, the second and fourth take individualism.

In the 17th year of the Republic of China, when the National Government Legal Affairs Bureau promulgated the fourth draft of the kinship law, there was an explanation of the legislative principles of the draft. On the third principle of the description is: "Reward the mutual assistance of relatives and remove their dependence. The codification of the law of kinship is either familial, as in the case of our successive drafts of the law of kinship, or individualistic, as in the case of the civil law of many European countries." (19) here referred to as "the previous draft of the law of kinship", obviously refers to the first three draft of the law of kinship, see the Legal Affairs Bureau of the note that the previous draft of the law of kinship are adopted family doctrine.

Shi's point of view and the Legal Affairs Bureau is not the same, Shi believes that the second draft of the individual, while the Legal Affairs Bureau that the previous three drafts of the family. In terms of time, the Legal Affairs Bureau's statement came first, and Shi's book came later. Whether it was a mistake or a different point of view, did not see the historical data.

In fact, according to the specific content of the successive draft legislation, combined with the then legislative instructions, it is not difficult to determine the legislative intent of the draft. According to the above definition of the meaning of the family-based and individual-based, the main basis for judging the adoption of a kinship law is not the existence of a family system, but whether the legal status of relatives is equal. Any kinship law that provides for inequality of status between relatives and the existence of a dominant relationship between relatives of a particular status belongs to the familial standard; on the other hand, a kinship law that recognizes the equality of legal status between relatives and the absence of a dominant relationship between relatives of a particular status belongs to the personal standard. Accordingly, the successive drafts of kinship law are analyzed as follows.

First of all, the first draft, namely, the draft of the Qing Civil Law, the relatives, undoubtedly belongs to the family-based legislation. From the legislative principle, in this draft of the editorial purpose of the "seek the most suitable for the Chinese people's law", said: "is where the relatives, marriage, inheritance and other matters, in addition to the constitution, discretionary modification, or the scriptures, or reference to morality, or take the existing legal system, in order to rectify the wind and discipline to maintain thousands of years of the people's rights to not be broken. thousands of years to maintain the people's rights." (20) It can be seen from the description of the legislation that the legislation on relatives and inheritance should follow the principle of tradition. In terms of content, the draft has a special chapter on the family system, which specifies the rights of the head of the family. "All persons belonging to a single family shall be one family. Anyone who wishes to establish a separate household while his parents are present must obtain their permission." (21) "The administration of the family is under the authority of the head of the family." (22) In the specific system, however, the family was not organized in such a way that it could not be separated from the family. (22) In the specific system, the maintenance of the traditional marriage and family system is reflected in many aspects. For example, relatives are still categorized into clansmen, wives and relatives outside the family; in the marriage and divorce systems, parents are still given the right to give consent, for example, "Marriage must be permitted by the parents"; (23) In the relationship between husband and wife, the rights of the husband over his wife are emphasized, for example, "The wife is obliged to live with her husband"; (24) "Family government is unified by the parents"; (25) "The family government is unified by the parents"; (26) In specific systems, the traditional marriage and family system is upheld in many ways. "(24) In the parent-child relationship, it emphasizes the parental rights of parents over their children. It can be said that the draft comprehensively safeguarded the unequal status relations between relatives.

Secondly, the second draft, namely, the fourth year of the Republic of China, the draft law of kinship, still adopts the family doctrine. The draft of the fourth year of the Republic of China was compiled by the Law Codification Committee, **** 7 chapters and 141 articles. On the background of its compilation, the history of not much involved, generally only explains its chapter roughly the same as the Qing civil law relatives of the draft law, but will be the first chapter of the general principles to the general principles; the second chapter of the family system only the general provisions of the section? (25) the draft has less impact. Because it is basically the "Qing civil law draft" of the replica, in the legislation on the issue of nature will not change.

Again, the third draft of the Republic of China 14 years draft civil law relatives, also adhere to the family doctrine. The draft of the 14th year of the Republic of China by the revision of the law compiled by the library, **** 7 chapters. The basic chapters did not differ much from those of the two previous drafts, but there were 234 articles, 103 more than in the fourth year of the R.O.C. draft. (26) In the legislative reasons of the draft, the reasons for the amendment of the part on relatives and inheritance are particularly stated, namely, "the provisions on relatives in the old law. And the social situation is far from heaven and earth, the application of extreme difficulties, the law can be said, Cao class, want to preserve the old system, the appropriate evil law, change the course, and cause disputes, how to go and how to go, non-deliberative, can not be decided abruptly". (27) Even so, the revised draft still retained the family system and the prerogatives of the head of the family, and the color of familialism is still obvious.

It is worth mentioning that, compared with the previous two drafts, the Second Draft of the Civil Code has some progress in specific content. Such as "men and women who are willing to get married freely", (28) a change from the original draft of the "must have parental consent" provisions; Another example, although the same provisions of the "wife has the obligation to cohabit with her husband", but added "if it is the husband's wife, the obligation to cohabit with her husband", but added "if it is the husband's wife, the obligation to live with her husband". Another example is that, although the same provision stipulates that "the wife has the duty to cohabit with her husband", it adds that "if the husband abuses his authority to the extent that the wife is in danger of being insulted or harmed, the wife shall not be obliged to comply with the obligation of the husband", and so on. These changes have narrowed the gap between status classes while adhering to tradition.

Finally, the fourth draft of the Republic of China in 17 years, the draft of the Legal Affairs Bureau, the adoption of individualism. This draft was drafted by the Legal Affairs Bureau of the Nanjing National Government and completed in 1928, ****7 chapters, respectively, the General Provisions, Marriage, Husband and Wife Relationship, Parent and Child Relationship, Maintenance, Guardianship, and Relatives' Meeting, the number of articles is less than the previous drafts, with only 82 articles.

The legislative principles of the draft are summarized as follows: recognition of the equality of men and women, promotion of racial health, and incentives for mutual assistance of the relatives and removal of their dependence. In terms of content, the provisions on the family system in the previous drafts were abolished, and individualism was explicitly recognized as the basis of the legislation. The principle of recognizing equality between men and women has led to significant changes in the previous unequal legislation. For example, instead of the traditional method of categorizing relatives on the basis of male lineage, the categorization of relatives in Europe and the United States has been adopted, i.e., according to the cause of the occurrence, they are categorized as spouses, blood relatives, relatives by marriage and so on. It can be said that the draft of the Legal Affairs Bureau is a big improvement from the previous three drafts, both in terms of legislative principles and specific contents. Because the Legislative Yuan had not yet been established, the draft was shelved and failed to take effect. However, its "remarkable spirit of innovation, is really one of the major advances in China's legislation. (29) It is also because it reflects the remarkable spirit of innovation, caused a great social repercussions, so that the two kinds of legislative position of the dispute has become the focus of attention of the legal profession. (30)

In summary, before the official implementation of the Republic of China's kinship law, there have been four draft laws on kinship promulgated. From the legislative principles and contents of the drafts, the first three drafts retained more traditional colors and were family-oriented kinship legislation, but only the draft of the Legal Affairs Bureau changed the old system and not only adopted the individualistic legislation commonly used in Europe and the United States at that time, but also took equality between men and women as the basic principle of legislation, whose progress could not be questioned.

Fourth, the Republic of China Civil Law relatives of the Legislative Council of the analysis

"Republic of China Civil Law relatives" (hereinafter referred to as "Civil Law relatives") by the National Government on December 6, 1930 published, and May 5, 1936 came into force. It contains 7 chapters and 171 articles, of which chapter 6 is "Family".

On the question of whether or not to retain the family system, the Civil Code of Relatives did not follow the draft of the Legal Affairs Bureau, but restored the practice of the previous three drafts, and devoted a special chapter to the "family". In response to this, the "Preliminary Opinions" prior to the enactment of the law contained a special explanation, which stated in the eighth point, "Should the family system be regulated?" that "The family system should be regulated in a special chapter." The reason is: "There is still room for study as to whether individualism and familialism are gaining or losing in today's world, but the family system in our country has been the foundation of social organization for thousands of years, and if we want to overthrow it fundamentally, I am afraid that it will be difficult to do so or will affect the society too much, so it seems to be appropriate to retain this kind of organization as a matter of fact, and it is necessary to recognize the existence of the family system in the law, and to set up a special chapter to provide for it in detail. The existence of the family system should be recognized in law, and a special chapter should be devoted to it." In point 9, on the question of the family system, it is made clear that: "1. The provisions of the family system shall be based on * * * coexistence and shall be emphasized over the duties of the parents. 2. The parents shall be of either sex." The reason is: "It is recognized that the purpose of the family system is to maintain the **** life of the whole family, and therefore the **** life of the family should be the basis, not the parental authority. Switzerland and the Balkans have established the family system, which is sufficient for reference. It is our custom to emphasize the rights of the head of the family to the exclusion of the duties, and only men are qualified to be the head of the family while women are not, which is not in line with the present situation. Therefore, in order to maintain the family system, the duties of the head of the family should be emphasized and the head of the family, regardless of the sex of the family, should be stipulated, so that the psychology of the society and the trend of the world can be taken into consideration." (31) At that time, many legal scholars believed that the legislative standard adopted in the Civil Law's Kinship Part had reverted back to the family standard. For example, the scholar Yuyi said: "In the fall of 17 years, the Legal Affairs Bureau of the National Government compiled the draft of the new kinship law, which was based on individualism, in the hope that it would be suitable for the future trend and conform to the world trend, and that it would be the right thing to do to legislate on a timely basis. However, it is not expected that the recent announcement of the kinship law by the state government still adopts the family standardization, which is not something we can agree with." (32) However, there is also the view that, although the Civil Law of Relatives retains the family system, but because the content "to *** with the life of the fundamental, placed emphasis on the obligations of parents, parents regardless of gender can serve as a slightly the same meaning of the Swiss Civil Code, is not the adoption of the family is also". (33) In the author's view, formally, the Civil Code provides a special chapter on "family", which covers the meaning of family, the relationship between parents and family members, etc., and is in line with the characteristics of family-based legislation. However, in terms of content, it is quite different from the previous three drafts. The original three drafts of the family system part of the family to determine the personal dependence of the parents, to the second draft of the civil law, for example, the family system part of the provisions of the "parents in the parents want to set up a separate household must be allowed by the parents", (34) "family members shall not be opposed to the parents of the intention of the establishment of the address", (35) "family members shall not be set up against the parents of the intention of the address", (36) "family members shall not be set up against the parents of the intention of the parents". (34) "A family member may not set a residence address against the wishes of the parents", (35) "A family member must obtain the consent of the parents in order to establish an heir or to leave an heir", etc. (36). In the Civil Code, it is stipulated that "a family member who has reached the age of majority or who has married before reaching the age of majority may request to be separated from the family."(37) This stipulates that a family member who has reached the age of majority or who has married before reaching the age of majority may request to be separated from the family. (37) This makes it clear that family members who have reached the age of majority can leave the family on their own, and that the parents have no control over their family members. In the Civil Code, there is only one article, article 1125, which clearly stipulates the rights of the parents: "The management of the household is entrusted to the parents. However, the parents may delegate part of the household chores to family members." Article 1126, on the other hand, stipulates that: "Parents shall manage the household in the interest of the family as a whole." It can be seen that there is a fundamental difference between the contents of the two articles under the same name of "family system". And the reason for the legislation is also expressed in the statement: "individualism and familism in today's, which is the gain or loss, there is still room for research, and our family system, for thousands of years the basis of social organization, once you want to overthrow the fundamental, ?" Here, familism is not the same as the family system. Familism refers to the fundamental starting point of the legislation, while "the family system cannot be overthrown" refers to the reason for retaining the "family system", not the reason for insisting on "familism". The reason for the retention of the "family system", not the reasons for insisting on "familyism".

Fifth, the scholarly debate on the pros and cons of the family-based and personal-based

The family-based kinship legislation generally has the content of the family system. The family system has been the basis of Chinese social organization for thousands of years. Mencius said, "The foundation of the world is in the state, the foundation of the state is in the family, and the foundation of the family is in the body." This is the theoretical basis for Confucianism's emphasis on the family system. In the process of formulating the Civil Law on Relatives, there have always been debates on whether to adopt the family or individual standard and whether to retain the family system. On the advantages and disadvantages of the family-based system and the individual-based system, Yuyi made a more comprehensive analysis in his article "On the Adoption of the Individual-based System in the Draft of the New Relative Law" (38). In his article "On the Adoption of the Individual System in the New Draft Law on Relatives" (38), Yuyi argues that the family system and the individual system have their own advantages and disadvantages, and that there is no absolute beauty in them, so the legislation can only weigh the advantages and disadvantages, and that the individual system should be adopted because the advantages of the individual system outweigh the disadvantages in comparison. The family-oriented scholars are also many. As early as 1922, scholars Chen Zihao advocate kinship legislation should not be false admiration for the beauty of civilization, abandon all of its own, but should retain the characteristics of the family doctrine. (39) A similar view was held by Huang Youchang, then a professor at Peking University. In response to the draft of the Legal Affairs Bureau to adopt the individual-based, abolition of the family system, Prof. Huang Youchang believed that individualism is not in line with the nationalism of the Three Principles of the People. (40) "Our country belongs to the system is not necessary to support, but a few years ago, y rooted, the tendency of the people's hearts in the community, must be corrected and corrected, the situation can not be, not to mention the family, harmony and solemnity, but also enough to make the people's hearts and minds, to go thin and thick, and then must be taught to correct the reason?" (41)

The Japanese jurist Nakajima Tamayoshi, while praising the draft of the Legal Affairs Bureau for its transformative nature, expressed concern about its adoption of the individual-based, abolition of the family system, arguing that there is no absolute good or evil in the family-based, and that if the relevant social systems and organizations have been perfected, then the family system would naturally collapse, and vice versa, there is still a significance to the existence of the family system, and therefore, the abolition of the family system will necessarily have to focus on reforming the social organization.

Scholar Zhao Feng (eeryeryery music) in the Civil Law relatives of the book also specifically discussed the loss of the family system of the abolition of the problem. He believes that the formation of the family system is a "potential", depending on the degree of industrial progress and determine its evolutionary trajectory. If China stagnates in an agrarian society, the family system will have vitality; otherwise, the collapse of familialism cannot be undone by human power. (42) As for the relationship of support between relatives, it has in fact been settled by law. In the recent kinship system, there are provisions of support and custody, between specific kinship status, there is a legal obligation to support, to its personal dependence and increase the obligation to support, so even under individualism, mutual assistance between relatives is still recognized and protected.

The author believes that the above scholars on the pros and cons of the two types of legislation, to a certain extent, there is a deviation in the understanding. The scholars who advocate the retention of the "family system" actually regard the family as the main body. The adoption of individualism does not mean that the family is not necessary and that there is no identity relationship between relatives. The denial of the status of the "family" as a legal subject does not mean that it does not recognize and protect mutual assistance between relatives, which is not predicated on *** living together, but on the status of particular relatives. The rights and obligations between particular relatives remain. It is contrary to jurisprudence to treat the "family" as a subject of law. Providing for unequal status relations among family members can ostensibly stabilize the "family system", but in reality it sows the roots of personality conflicts within the family. The history of the disintegration of old families in recent times is ample proof of this. The emancipation of the personality of family members is a historical necessity. And equal personality relations between close relatives, can exist in the form of family.

The Civil Code, "relatives" retained the "family", and in the reasons for legislation, said: "China's family system, for thousands of years the basis of social organization." The abolition of the chapter on the family system in the draft of the Legal Affairs Bureau sparked widespread controversy in society. Therefore, the "Civil Code Relatives" adopted an alternative approach, and its provisions on the rights and obligations between parents and family members are essentially the same as the relationship between close relatives in the relatives section of the modern Civil Code. In other words, in the form of "family", the rights and obligations between a certain range of relatives.

It is worth mentioning that the retention of the "family" plays a role in solving the problem of concubines. There is no provision on concubines in the Civil Code, but the seventh point of the nine prerequisites, "the issue of concubines", is clear: "the issue of concubines, there is no need to stipulate". The reason for this is: "The system of concubines should be urgently abolished; although they still exist in fact, they are not allowed to exist in law, and there is no need to make special provisions for their status in the Code or in separate statutes. As for the status of their children, such as the inheritance of estates and the restriction of marriage to relatives, all children born out of wedlock are the same as those born in wedlock, which have already been stipulated in the respective issues, and there is no need to solve them separately". From this statement, it appears that the Civil Law Relatives Series adopts an evasive attitude towards the issue of concubines, i.e., it does not deal with it, and the consequence of not dealing with it is that concubines are not legally recognized as having the status of relatives. Under these circumstances, the role of the "family" comes to the fore. "A person who, although not a relative, cohabits in the same household with the aim of living together permanently is considered to be a family member".(43) It is clear that a concubine is not a family member. (43) It is clear that concubines fully satisfy this requirement. The conferral of the status of family member, rather than relative, on the concubine resolves the concubine's legally awkward position. Recognition as a relative necessarily requires her to be attributed to a certain type of relative, and the only person to whom she can be attributed is her spouse, which of course touches on the sensitive system of monogamy. If they are recognized as family members, they can enjoy the treatment of family members, i.e., cohabitation, and they can become obligated to provide support. It is because of this ambiguous attitude towards concubines that the Civil Law of Relatives is considered to be conservative, and in fact still recognizes the act of concubinage. However, in the author's opinion, this approach of the Civil Law of Relatives is also very wise from another point of view. The reason is that by not granting concubines the status of relatives, the legislation upholds the monogamous system; and by determining their status as family members, the fact of concubinage that has already been formed is maintained, which to a certain extent safeguards the interests of the concubines, who are in a weaker position. In the absence of such a provision on family members, the person concerned, who is already a concubine, has no legal protection whatsoever. It is undoubtedly undesirable to ignore the interests of the weak in the name of the advancement of the law. Of course, if the law expressly prohibits concubinage and provides for non-retroactivity, it will not leave the tail of tradition behind.

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