Assignment: Hunan province Anhua County Legal Aid Center

Organizer: Anhua County Notary Office

[Case synopsis]

A village of Anhua County Tan Moumou town and its daughter Zhang Xiaoxiang (a pseudonym) is a congenital disability personnel. Tan Moumou's husband died in May, 1997, daughter Zhang Xiaoxiang and Mei town life without the she took only 8 years old, a village a second life together. In 2011 February, Zhang not wet floor hit his head in the shop. A second was the company (a Shenzhen company) to include a second, employees in the Picc Life Insurance Co Shenzhen branch insured group insurance, the insurance amount of 100000 yuan, according to the regulation, the insurance company for a second relatives for inheritance notarization before they can collect the insurance money.

    [Handling process]

Zhang Xiaoxiang's husband, Chen Moumou is Chen Xiaoxiang's legal representative, he didn't read a few years, also didn't go out have seen the world, only facing loess back upturned. This confused at a loss. After the others, he told the local legal aid center city stations for help. Legal aid workstation comrades to understand the situation, immediately to the County Legal Aid Center to report the case, legal aid center immediately assigned notary notarized legal assistance for the request, and the city legal aid workstation Yu webmaster and assisting on legal affairs.

Anhua notary public office received the appointment, will apply for the relevant certification succession legalization required to inform Chen Mou Chen Moumou, collect relevant evidence, to the notary office notarized.

Chen Moumou brings the following proof: Tan Moumou, Zhang Xiaoxiang, Chen Moumou, a second book and identity card, a second accounts proof, Zhang Xiaoxiang and Chen Moumou marriage certificate, one level of intellectual disability certificate Chinese Disabled Persons Federation awarded to Zhang Xiaoxiang, Mei Xi Cun town rock village committee, issued by the proof of kinship issued by Picc Life Insurance Co Shenzhen branch of the group insurance is insurance personnel list. The account of the user that Tan Moumou is second wife, Zhang Xiaoxiang is a household that second daughter. Proof of kinship, write a second had spouses and immediate family has 4 people: his wife Tan Moumou, born in July 19, 1968, father Zhang Chunsheng (a pseudonym), was born in November 10, 1933, his mother died in August 6, 2004,: Li Xiaolan (a pseudonym), was born in May 11, 1936, died in December 5, 2004, his daughter Zhang Xiaoxiang, born in February 10, 1989. That in addition to cover "Anhua County Mei Xi Cun town rock village committee" official seal, Town People's government and the city police station were built chapter.

I found in the review of notary materials, not a second and Tan Moumou's marriage certificate provided by the parties. The inquiries of the parties concerned, the original Zhang second and Tan Moumou did not handle marriage registration procedures, has been the cohabitation.

Why a second and Tan Moumou had never married, registration booklet is husband and wife? After the Public Security Bureau registration unit investigation, originally, in 2008 the county conducted a comprehensive account registration, account in rural areas are built by unified roster village after police station police station did not report, investigation and verification. In this case, a second and Tan Moumou, because together for a long time, the village committee leadership has changed several times, then appoint team will most probably it did not actually happen that they were formally married, there were errors lead to account registration. In the proof of kinship, the police station according to the household registration, to them in the proof of kinship, cover seal.

How to identify the relationship between the three? At the meeting, everyone brainstorming, discussion is very warm.

The first is the identification of a second and Tan Moumou relations. According to the interpretation of the Supreme People's court "on the application of 'issues' marriage law of the people's Republic of China (a) fifth:" the provisions of the first paragraph of the Ministry of civil affairs in February 1, 1994 "marriage registration regulations" promulgated before, both men and women have been in line with the substantial conditions of marriage, according to the factual marriage treatment. In this case, a second and Tan Moumou began living together in 1997 May, does not belong to the factual marriage. According to the "on the application of 'problems' of the people's Republic of China marriage law explain (a)" the provisions of sixth: not according to eighth of the marriage law stipulates to apply for marriage registration and live together as husband and wife sex, one death, another party by spouse identity claims have the right of inheritance, in accordance with the principles of the interpretation of article fifth. A second and Tan Moumou cohabitation, do not have the rights and obligations of the husband and wife, Tan Moumou had no right to make a second heritage.

The second is that the relationship between a second and Zhang Xiaoxiang. Since a second and Tan Moumou is not a legal relationship between husband and wife, to deduce a second, and Zhang Xiaoxiang also not constitute the stepfather and stepdaughter. But can constitute the relationship between father and daughter's? It is understood, a second has not handling legal procedures adopted Zhang Xiaoxiang. As a notary public, not that Zhang Xiaoxiang Is it right? A second daughter. In this case, according to "notary law", "Notarization procedure rules" of the relevant provisions, if the parties cannot provide sufficient material to prove, nor should the notary office and notary office to fill and cannot be verified, a notarization institution shall not handle. However, in view of the special nature of the case, Zhang Xiaoxiang is congenital mental retardation, belong to the social vulnerable groups, we can not be pushed.

A second was there are 4 siblings, they suggest, they as the second order heir for succession legalization, such as a second insurance gold collar back, then the insurance gold to Zhang Xiaoxiang.

In this case, a second without a spouse, no biological children, parents are dead. But in the absence of the relationship between the second and Zhang Xiaoxiang's case, we are not suitable for family of 4 siblings for second order heir for succession legalization. If they request issued in 4 siblings to inherit notarization heir, equals to deny the relationship between a father and daughter of Zhang Xiaoxiang and Zhang. 4 brothers and sisters to insurance gold collar back, who can guarantee that they will get insurance gold to Zhang Xiaoxiang? Doing so will not guarantee the rights and interests of Zhang Xiaoxiang, but also may bring immeasurable notarization risks.

There was a suggestion that, can give them 4 siblings for a kinship certificate. According to January 1, 2001 since the implementation of the "certificate of assembly" in the kinship notary class type eighteenth (two) format notarization, the 4 brothers and sisters as the applicant, Zhang put as the relationship between people. As long as the notary book write "this is to certify that the applicant is a boss Zhang second brother, third is the relationship between applicant Zhang Zhang second brother, Zhang Lao Zhang applicant is the second brother, Zhang Lao Zhang is the relationship between the second sister." As long as we determine the relationship between the applicant and the relatives of the person, neither affirmed a second and Zhang Xiaoxiang is a father daughter relationship, nor denied a second and Zhang Xiaoxiang is a father daughter relationship, if they can be notarized relationship certificate successfully reclaimed 100000 yuan insurance payments, no matter how they deal with the money, the notary office will not be what trouble.

The comments by other notary negation. Because kinship notary role in determining the applicant and the relationship between only relatives of the person, and not as heir identity and accordingly obtain heritage. And, after a call to ask the China life-insurance company, their response was only by succession legalization payment of claims.

How to determine the relationship between a second and Zhang Xiaoxiang, we have two kinds of views, the first view is a second and Zhang Xiaoxiang in fact constitute a father daughter relationship, the reasons are as follows:

The first,In 1997 May Tan Moumou with female Zhang Xiaoxiang and a second life together, a second child has reached the age of 37, had no biological children, comply with the "adoption law" provisions on the adoption of; Tan Moumou is disabled, life is very difficult, in accordance with "adoption law" on the adoption of one of the "special difficulties to raise children parents"; Zhang Xiaoxiang was only 8 years old, congenital mental retardation, also in line with the "adoption law" in the provisions on the adoptee conditions.

Second, the Supreme People's Court (84) Law No. 112nd "on the implementation of the twenty-eighth issues of civil law and policy advice" fourth parts "adoption" provision "friends, masses accepted, or relevant organizations to prove, that the relationship between the adoptive parents and adopted children long to live together, although no registration, also should be treated as the adoptive relationship". In this case, a second and Zhang Xiaoxiang to father, daughter quite lived together for 14 years, a second as the duty to bring up and educate Zhang Xiaoxiang, and Zhang Xiaoxiang also moved to the account a second residence booklet, also accepted the family relatives and neighbors, not contrary to the basic principles and social ethics, adoption therefore, should be identified a second and Zhang Xiaoxiang in the establishment of the adoptive relationship.

Third.April 1, 1999 implementation of the "adoption law" Fifteenth stipulation: the adoption shall be registered with the Civil Affairs Department of the people's government at or above the county level. The adoptive relationship shall be established as of the date of registration. While the April 1, 1992 implementation of the "adoption law" Fifteenth stipulation: not find adoptive foster parents of abandoned babies and children and social welfare institutions for orphans, shall be registered with the civil affairs department. But 92 years "adoption law" to adopt object is not abandoned babies, children and orphans are not required to register, so it can be concluded that, a second without registration is not equal to them in the adoptive relationship does not hold. A second and Zhang Xiaoxiang on 1997 in together for life, according to the rule of law in China -- the basic principles of "law of non retroactivity" came into effect in April 1, 1999, "adoption law" in the provisions on the registration is not completely suitable for a second and Zhang Xiaoxiang.

The second view is that it is hard to tell whether a second and Zhang Xiaoxiang in the end Is it right? Adoptive father daughter relationship. According to the five ministries (Ministry of civil affairs, the Ministry of public security, the Ministry of justice, the Ministry of health, population and Family Planning Commission ([2008]132) in civil law, "" notice ") in April 1, 1999 on the settlement of civil private adoption of children," adoption law prior to the implementation of "decision to amend domestic private citizen adoption of children, according to the Justice Department (division hair (1993) No. 125)" notice for applying to adopt the fact before the law establishment of adoptive relationship notarization "...... In accordance with the relevant provisions". But the Justice Department (Division issued through (1993) No. 125) expressed this notice in the adoptive relationship is the fact that, according to the April 1, 1992 implementation of the "adoption law" to determine the. Here is a blank area, namely after April 1, 1992 to April 1, 1999 between the adoptive relationship cannot be determined.

According to our understanding, the five ministries in the "notice" in the "April 1, 1999," adoption law prior to the implementation of "decision to amend domestic private citizen adoption of children", can understand for April 1, 1999 before the adoption legal facts are adopted, otherwise it should be written as "April 1, 1992," adoption law "before the entry into force......"

Based on this reason, starting from the measured angle, we agreed that, whether there is relationship between the second and the de facto adoption Zhang Zhang Xiaoxiang, must first be recognized in law, to determine the Zhang Xiaoxiang issue succession certificate or the 4 brother and sister issued in succession certificate second order heir.

The notary office and Law Aid Center staff and Zhang Xiaoxiang the domicile of the court made contact, how to solve this problem conducted several consultations.

In the survey we found a second life, in addition to the insurance money, the other left the old old 3. After his death, has been unable to confirm this 3 room home, the 4 siblings are also quite puzzled, although they are very sympathetic to Zhang Xiaoxiang, but after all the four brothers and sisters, in order to not pull yarn, they all want to have a clear answer in the law.

We propose to the 3 old house as the breakthrough point, to solve the problem of 3 room home, the court accepted our suggestion. The city legal aid workstation Yu director for the drafting pleadings, Chen Moumou representative Zhang Xiaoxiang to court statutory succession 4 siblings (3 property a second) dispute case, the court accepted the case, and with simple open procedure was tried, on both sides of the mediation, a mediation.

After the trial, the court made (2011) an Famin first No. 601st "civil mediation book", have a paragraph of such words: "mediation book through investigation, Anhua County town of a village Zhang second started to live together in 1997 May with Tan Moumou, without marriage registration, nor the fact that a marriage relationship, a second living with Tan Moumou, Tan Moumou carried the girl Zhang Xiaoxiang with a second life together, a second try raising education obligations to Zhang Xiaoxiang, a second and Zhang Xiaoxiang has formed a fact of adoptive father daughter relationship, Zhang Xiao Shannon is a second daughter. A second in 2011 February accident, a second left some 3 rooms, worth about 8000 yuan. According to the Supreme People's court "certain provisions" on the application of summary procedures in the trial of civil cases the provisions of article fourteenth, in this case the court presided over the mediation, the parties reach the following agreement voluntarily......" At the same time, mediation, Zhang Xiaoxiang's husband Chen Moumou is Zhang Xiaoxiang's legal representative.

[To undertake the

Receive civil mediation book, Zhang Xiaoxiang's legal representative Chen Moumou came to my office to apply for Zhang Xiaoxiang's succession legalization. The court issued a mediation agreement, a second and Zhang Xiaoxiang in fact foster father daughter relationship was confirmed by the law, Zhang Xiaoxiang is the legal heir of a second's legacy. Accordingly, we quickly run the Zhang Xiaoxiang inheritance notary and a power of attorney notary. Special succession legalization this striking one snag after another was finally completed.

[Case comments]

"Hunan legal aid regulations" provisions of article second of the notary is the legal service personnel in the implementation of legal aid. As the vulnerable groups of persons with disabilities, behoove is notary service object. Special case that Zhang Xiaoxiang and her daughter's disability and their relationship with the deceased Zhang second complexity, to determine whether a second and Zhang Xiaoxiang share a fact of adoptive relationship has become the key point of this case. The notary office can worry about the urgency of the parties, the parties want to think, stop trying to serve them, the parties and a second four siblings are very grateful, embodies the notary personnel on vulnerable groups caring heart, maintain social stability and harmony.

Published in 2011 Chinese "legal aid" seventh period