This term is provided by the "Rule of Law Encyclopedia" project leading group office of China Law Society.
Civil CodeThe "relatives" in the marriage and family section of "marriage and family" refers to relatives in the legal sense, and refers to natural persons who have marriage, consanguinity or legal imitated consanguinity and have certain rights and obligations with each other regulated by law.
There is no clear definition of direct relatives in Chinese law, which generally refers to people with direct blood or marriage relationship, including direct blood relatives and direct in laws, such as parents, spouses, children, grandparents, maternal grandparents, etc.
The relatives in the marriage and family section of the Civil Code refer to the relatives in the legal sense, and refer to natural persons who have marriage, consanguinity or legal fiction consanguinity, and have certain rights and obligations with each other regulated by law.
There is no clear definition of direct relatives in Chinese law, which generally refers to people with direct blood or marriage relationship, including direct blood relatives and direct in laws, such as parents, spouses, children, grandparents, maternal grandparents, etc.
Legal provisions
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(I)Provisions of the Civil Code
Article 1045
Relatives include spouse, blood relatives and in laws.
Spouses, parents, children, siblings, grandparents, grandchildren, and grandchildren are near relatives.
Spouses, parents, children and other close relatives living together are family members.
Types of relatives
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There are mainly two models of dichotomy and trichotomy in the definition of relatives in the civil law system.
The dichotomy divides relatives into blood relatives and in laws.The third method divides relatives into spouses, blood relatives and in laws.There are also a few countries and regions (such as Portugal and China's Macao region) that have adopted the quartering model, and summarized the legal sources of relatives into marriage, kinship by blood, marriage and adoption.
According to the causes of kinship, our country adopts the trichotomy method to divide relatives into spouses, blood relatives and in laws.
spouse
Spouse, namely husband and wife, refers to the relatives of both men and women who are spouses of each other because of marriage.Spouses play a central role in kinship, and are also the source and basis of blood relatives and in laws, playing a connecting role in kinship.
Consanguinity
Consanguinity refers to relatives who are related by blood.According to the source of blood relationship, blood relatives can be divided into natural blood relatives and legal imitated blood relatives.
1. Natural blood relatives.
Natural blood relatives refer to relatives with real blood ties formed by birth from the same ancestor, such as parents and children, brothers and sisters, grandparents and grandchildren, grandparents and grandchildren, uncles and nieces, uncles and nieces, uncles and nieces, etc.Regardless of paternity or maternity, whether born in wedlock or out of wedlock, whether full blood (brothers and sisters of the same father and mother) or half blood (brothers and sisters of the same father and mother), all belong to the scope of natural blood relatives.
2. The law creates consanguinity.
The legal fiction of consanguinity refers to relatives who have no blood relationship but have the same rights and obligations as natural relatives confirmed by law.This kind of consanguinity is not formed by birth, but is established by law, so it is also called "legal consanguinity".There are two types of legal imitated consanguinity confirmed in the Marriage and Family Code of the Civil Code: one is between adoptive parents and adopted children, and the other is between stepparents and stepchildren who are supported and educated by them.
in-laws
In laws refers to the kinship between one spouse and the other's blood relatives due to marriage, such as daughter-in-law and mother-in-law, son-in-law and parents in law, brothers and sisters of husband and wife, and brothers and sisters of wife and husband.According to the links between in laws, in laws are divided into consanguineous spouses, consanguineous spouses of spouses, consanguineous spouses of spouses, and consanguineous spouses of consanguineous spouses.
1. Spouse of consanguinity
The spouse of a relative by blood refers to the spouse of one's immediate or collateral relatives by blood.For example, the son's wife (daughter-in-law) and the daughter's husband (son-in-law) are the spouses of their lineal relatives;The brother's wife (sister-in-law or sister-in-law) and the sister's husband (brother-in-law or brother-in-law) are the spouses of their collateral relatives.
2. The spouse's blood relatives.
The spouse's blood relatives refer to the blood relatives of their spouses.For example, the husband's parents (in laws) and the wife's parents (in laws) are the direct relatives of their spouses by blood;The wife's siblings and the husband's siblings are collateral relatives of their spouses.
3. The spouse of a relative by blood.
The spouse of the spouse's blood relatives refers to the husband or wife of the spouse's direct blood relatives or collateral blood relatives.For example, people call the wives of brothers "Mrs. Can" and the husbands of sisters "brother-in-law".
3. The consanguinity of a spouse.
The consanguinity of the spouse of a consanguinity refers to the direct or collateral consanguinity of the spouse of his own direct or collateral consanguinity.
For example, parents between husband and wife are called "in laws".
Scope of close relatives
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The scope of close relatives is a specific scope stipulated by law within the scope of the adjustment of kinship.There are generally two kinds of laws on the limitation of the scope of close relatives: the first is the general limitation law, that is, the law generally stipulates the scope of relatives, and then stipulates its legal effect according to the types and degrees of relatives.The other is the individual applicability limitation law, that is, the law makes specific provisions on the legal effect of relatives according to the needs of different legal relationships.
China adopts the individual applicability limitation method, that is, spouse, parents, children, siblings, grandparents, maternal grandparents, grandchildren, and grandchildren are close relatives.
Effect of close relatives
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The effect of near relatives is mainly manifested in the following areas: in the Marriage and Family Code of the Civil Code, marriage of relatives within a certain range is prohibited;It stipulates that relatives within a certain range have the duty of maintenance.In the General Provisions of the Civil Code, a close relative may act as the guardian of an adult with no or limited capacity for civil conduct;A close relative may, in accordance with law, apply to the court for declaring a missing relative missing or dead.In the criminal law, if the victim is unable to tell a crime that is dealt with only after being told, if the victim is forced or intimidated, the close relatives of the victim may also tell;The subject of the crime of taking bribes through influence includes the close relatives of state functionaries.In the field of procedural law, whether in civil proceedings or criminal proceedings, judges should withdraw when they are close relatives of the parties involved in the case.
member of family
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Family members refer to close relatives who live together in a family and have legal rights and obligations with each other.The Civil Code identifies spouses, parents, children and other close relatives living together as family members.Not all relatives are family members, such as uncles, uncles, aunts, uncles, aunts, nephews and nephews. Although they are collateral blood relatives, they do not have legal rights and obligations with each other when they do not live together in the same family, so they are not family members.Family members are only a small part of relatives, and the range of relatives is much wider.Therefore, family members generally have kinship, and those who have kinship do not necessarily belong to family members.
