Chapter I General Principles
Article 1 This Law is formulated for the purpose of protecting the lawful adoption relationship and safeguarding the rights of the parties involved in the adoption relationship.
Article 2 Adoption shall be conducive to the upbringing and growth of adopted minors, safeguard the legitimate rights and interests of adoptees and adopters, follow the principle of equality and voluntariness, and shall not violate social morality.
Article 3 Adoption shall not violate family planning laws and regulations.
Chapter II Establishment of Adoption Relationship
Article 4 The following minors under the age of 14 may be adopted:
(1) Orphans who have lost their parents;
(2) Abandoned babies and children whose biological parents cannot be found;
(3) Children whose biological parents have special difficulties and are unable to support them.
Article 5 The following citizens and organizations may serve as caregivers:
(1) the guardian of the orphan;
(2) Social welfare institutions;
(3) biological parents who have special difficulties and are unable to raise their children.
Article 6 An adopter shall meet the following conditions:
(1) No children;
(2) Having the ability to raise and educate the adoptee;
(3) Not suffering from diseases that are medically considered unsuitable for adopting children;
(4) At least 30 years old.
Article 7 The adoption of a child who is a collateral blood relative of the same generation within three generations may be exempted from the restrictions of the third paragraph of Article 4, the third paragraph of Article 5 and Article 9 of this Law, and the adoptee is under the age of 14.
Overseas Chinese can adopt children who are collateral relatives of the same generation within three generations, or they can be free from the restriction that the adopter has no children.
Article 8 An adopter can only adopt one child.
The adoption of orphans, disabled children who can't find their biological parents, abandoned babies or children raised by social welfare institutions can be exempted from the restriction that the adopter has no children to adopt one.
Article 9 If a man without a spouse adopts a woman, the age difference between the adopter and the adoptee shall be over 40 years old.
Article 10 Where a biological parent puts out a child for adoption, both parties shall jointly put it out for adoption. If one parent is unknown or can't be found, it can be adopted unilaterally.
If the spouse adopts a child, the husband and wife must adopt it together.
Article 11 Adoption by adopters and adoption by adoptees shall be voluntary. Where a minor over the age of ten is adopted, the consent of the adoptee shall be obtained.
Article 12 If neither of the parents of a minor has full capacity for civil conduct, the guardian of the minor shall not put him up for adoption, unless his parents may cause serious harm to the minor.
Article 13 A guardian must obtain the consent of the person who has the obligation to support the adoption of minor orphans. If the person who has the obligation to support does not agree to the adoption and the guardian is unwilling to continue to perform the guardianship duties, the guardian shall be changed in accordance with the provisions of the General Principles of the Civil Law of People's Republic of China (PRC).
Article 14 A stepfather or stepmother may adopt a stepchild with the consent of the biological parents of the stepchild, and may not be subject to the restrictions of Paragraph 3 of Article 4, Paragraph 3 of Article 5 and Article 6 of this Law. If the adoptee is under the age of 14, one person shall be adopted.
Fifteenth adoption shall be registered with the civil affairs department of the people's government at or above the county level. The adoption relationship shall be established from the date of registration.
Where an abandoned baby or child whose biological parents cannot be found is adopted, the civil affairs department that handles the registration shall make an announcement before registration.
If the parties to the adoption relationship are willing to conclude an adoption agreement, they may conclude an adoption agreement.
If the parties or one of the parties to the adoption relationship requests notarization of adoption, they shall do so.
Article 16 After the adoption relationship is established, the public security department shall register the adoptee registered permanent residence in accordance with the relevant provisions of the state.
Article 17 Orphans or children whose biological parents are unable to raise them may be raised by their relatives or friends.
The relationship between dependents and dependents does not apply to adoption.
Article 18 If one spouse dies and the other spouse puts out a minor child for adoption, the parents of the deceased spouse shall have the preemptive right.
Article 19 A person who puts out a child for adoption shall not give birth to another child in violation of family planning regulations on the grounds of putting out the child for adoption.
Article 20 It is forbidden to buy or sell children or to buy or sell children in the name of adoption.
Article 21 Foreigners may adopt children in People's Republic of China (PRC) in accordance with this Law.
The adoption of children by foreigners in People's Republic of China (PRC) shall be examined and approved by the competent authorities of the host country in accordance with the laws of that country. The adopter shall provide proof materials such as the adopter's age, marriage, occupation, property, health status and whether he has been subjected to criminal punishment. (a) issued by the authorities of the host country, and the certification materials shall be certified by the foreign diplomatic authorities or institutions authorized by the foreign diplomatic authorities, and certified by the embassy or consulate of People's Republic of China (PRC) in that country. The adopter shall conclude a written agreement with the adopter and register with the civil affairs department of the provincial people's government in person.
If one or both parties to the adoption relationship request for adoption notarization, they shall go to a notarization institution with foreign-related notarization qualification recognized by the judicial administrative department of the State Council for adoption notarization.
Article 22 Where the adopter or the adopter requests that the adoption be kept confidential, others shall respect their wishes and shall not disclose them.
Chapter III Effectiveness of Adoption
Twenty-third from the date of adoption, the rights and obligations between adoptive parents and adopted children shall be governed by the provisions of the law on the relationship between parents and children; The rights and obligations between adopted children and close relatives of adoptive parents shall be governed by the provisions of the Law on the Relationship between Children and Close Relatives of Parents.
The relationship of rights and obligations between adopted children and biological parents and other close relatives is destroyed by the establishment of adoption relationship.
Article 24 An adopted child may adopt the surname of the adoptive father or mother, and the original surname may be retained after the parties reach an agreement through consultation.
Article 25 Adoption that violates Article 55 of the General Principles of the Civil Law of People's Republic of China (PRC) and the provisions of this Law shall have no legal effect.
If the adoption is confirmed invalid by the people's court, it has no legal effect from the beginning.
Chapter IV Dissolution of Adoption Relationship
Article 26 The adopter shall not dissolve the adoptive relationship before the adoptee comes of age, unless the adopter and the adopter reach an agreement to dissolve it. If the adopted child reaches the age of 10, his consent shall be obtained.
If the adopter fails to perform the obligation of raising, maltreatment, abandonment and other acts infringe upon the legitimate rights and interests of the minor adopted child, the adopter has the right to demand the dissolution of the adoptive relationship between the adoptive parents and the adopted child. If the adopter and the adopter cannot reach an agreement to terminate the adoption relationship, they may bring a lawsuit to the people's court.
Article 27 If the relationship between adoptive parents and adult adopted children deteriorates and they cannot live together, the adoptive relationship may be dissolved by agreement. If negotiation fails, a lawsuit may be brought to the people's court.
Article 28 If the parties agree to dissolve the adoption relationship, they shall register the dissolution of the adoption relationship with the civil affairs department.
Article 29 After the dissolution of the adoptive relationship, the rights and obligations between the adopted child and the adoptive parents and other close relatives are eliminated, and the rights and obligations between the adopted child and the biological parents and other close relatives are restored by themselves. However, whether the rights and obligations between adult adopted children and their biological parents and other close relatives are restored can be determined through consultation.
Article 30 After the adoption relationship is dissolved, the adult adopted children raised by the adoptive parents shall pay the living expenses to the adoptive parents who lack the ability to work and have no source of income. If the adoptive relationship is dissolved because the adopted child maltreats or abandons the adoptive parents as an adult, the adoptive parents may require the adopted child to compensate for the living expenses and education expenses incurred during the adoption.
If the biological parents ask for the dissolution of the adoption relationship, the adoptive parents may ask the biological parents to compensate the living expenses and education expenses incurred during the adoption period, except for the dissolution of the adoption relationship due to the abuse and abandonment of the adopted children by the adoptive parents.
Chapter V Legal Liability
Article 31 Whoever abducts and sells children in the name of adoption shall be investigated for criminal responsibility according to law.
Whoever abandons a baby shall be fined by the public security department; If a crime is constituted, criminal responsibility shall be investigated according to law.
Those who betray their own children shall be confiscated by the public security department and fined; If a crime is constituted, criminal responsibility shall be investigated according to law.
Chapter VI Supplementary Provisions
Article 32 The people's congresses of ethnic autonomous areas and their standing committees may, in accordance with the principles of this Law and in light of local conditions, formulate flexible or supplementary provisions. The provisions of the autonomous region shall be reported to the NPC Standing Committee for the record. The provisions of an autonomous prefecture or autonomous county shall take effect after being approved by the standing committee of the people's congress of the province or autonomous region, and shall be reported to the NPC Standing Committee for the record.
Article 33 the State Council may formulate measures for implementation in accordance with this Law.
Attach a case study:
Brief introduction of the case
Wu, female,1born on July 8, 1992, now lives in Area A, Harbin City, Heilongjiang Province.
Wu Qingxia, female, born on June 23rd, 1998, with the same address as above.
Wu He is a sister. Their mother Sun Wenhua died of illness on August 3, 2003, and their father died of a traffic accident on August 7, 2002. After Wu's parents died, she lived in Heilongjiang with her grandparents who were over 70 years old. In addition to grandparents, Wu's grandparents are over 80 years old and live in Xinjiang with Wu's menstruation. Because my grandparents are too old to take care of Wu's sister, Wu's uncle, who lives in Beijing, she proposed to adopt Wu. Sun Qiang already has a son aged 19. Wu's grandparents also agreed to send Wu Jiyang. Wu's uncle asked: I already have a child. Is it legal to adopt Wu? What procedures should I go through? If I adopt Wu, can I open a Beijing account for her?
Legal analysis
1. On the Legality of Adoption of Wu
Article 6 of the Adoption Law of People's Republic of China (PRC) stipulates that the adopter shall meet the following conditions at the same time: (1) No children; (2) Having the ability to raise and educate the adoptee; (3) Not suffering from diseases that are medically considered unsuitable for adopting children; (4) At least 30 years old. Paragraph 1 of Article 7 stipulates that the adoption of children who are collateral blood relatives of the same generation within three generations may be exempted from the restrictions of Paragraph 3 of Article 4, Paragraph 3 of Article 5 and Article 9 of this Law, and the adoptee is under the age of 14. Article 8 of the Adoption Law stipulates that an adopter can only adopt one child. The adoption of orphans, disabled children who can't find their biological parents, abandoned babies or children raised by social welfare institutions can be exempted from the restriction that the adopter has no children to adopt one. Paragraph 2 of article 10 stipulates that if a spouse adopts a child, both husband and wife must adopt it together. Article 11 stipulates that the adoption of minors over the age of 10 shall obtain the consent of the adoptee. Article 13 stipulates that the guardian must obtain the consent of the person who has the obligation to support the adoption of underage orphans. If the person who has the obligation to support does not agree to the adoption and the guardian is unwilling to continue to perform the guardianship duties, the guardian shall be changed in accordance with the provisions of the General Principles of the Civil Law of People's Republic of China (PRC).
Judging from the above, Sun Qiang already has children and can't adopt any more. However, as Wu's uncle, he adopted his sister's children, and he is a collateral blood relative of his peers within three generations, and is not restricted by the condition of "childless". If you have the ability to raise and educate Wu, and you don't have any diseases that are medically considered unsuitable for adopting children, you can adopt Wu. Wu can also use the expression. In addition, Wu was adopted. All the above conditions are indispensable under the conditions that Wu's guardian, Wu's grandparents, Wu's lover, Wu's grandfather and Wu himself agree to adopt. In line with the above conditions, it is legal to adopt Wu.
2. About the adoption procedure.
Article 15 of the Adoption Law stipulates that adoption shall be registered with the civil affairs department of the people's government at or above the county level. The adoption relationship shall be established from the date of registration. Where an abandoned baby or child whose biological parents cannot be found is adopted, the civil affairs department that handles the registration shall make an announcement before registration. If the parties to the adoption relationship are willing to conclude an adoption agreement, they may conclude an adoption agreement. If the parties or one of the parties to the adoption relationship requests notarization of adoption, they shall do so.
Article 2 of the Measures for the Registration of Children Adopted by Citizens of China promulgated and implemented by the Ministry of Civil Affairs1May 25, 1999 stipulates that China citizens who adopt children in China or terminate the adoption relationship through agreement shall register in accordance with the provisions of these Measures. The organ that handles adoption registration is the civil affairs department of the people's government at the county level. Paragraph 4 of Article 3 stipulates that if a child is adopted by a sibling within three generations, or if a stepfather or stepmother adopts a stepchild, registration shall be made with the adoption registration authority where the adoptive father or adoptive mother has a permanent residence. Article 4 stipulates that the parties involved in the adoption relationship shall go through the registration formalities for the establishment of the adoption relationship in person at the adoption registration authority. If a husband and wife jointly adopt a child, they shall jointly go through the registration formalities at the adoption registration authority; If one party is unable to go in person for some reason, it shall entrust the other party to go through the registration formalities in writing, and the power of attorney shall be certified or notarized by the villagers' committee or residents' committee. Article 5 stipulates that the adopter shall submit an application for adoption and the following documents and certification materials to the adoption registration authority: (1) the adopter's household registration book and identity card; (2) A certificate issued by the adopter's unit or villagers' committee or residents' committee on his marital status, whether he has children and the ability to raise and educate the adoptee; (3) A physical examination certificate issued by a medical institution at or above the county level that he has not suffered from a disease that is medically considered unsuitable for adopting a child. Article 6 stipulates that the adopter shall submit the following documents and supporting materials to the adoption registration authority: (1) the adopter's household registration book and identity card (if the organization is a guardian, the identity card of the person in charge shall be submitted); (2) If the adoption law stipulates that adoption should be approved by other persons with the obligation to support, submit the written opinions of other persons with the obligation to support. If the guardian is the person who puts out the child for adoption, he shall also submit the certificate that he actually bears the guardianship responsibility, the certificate that the orphan's parents are dead or declared dead, or the certificate that the adoptive parents have no full capacity for civil conduct and are seriously harmful to the adoptee. Article 7 stipulates that after receiving the application for adoption registration and relevant materials, the adoption registration authority shall conduct an examination within 30 days from the next day. For those who meet the requirements stipulated in the adoption law, the adoption registration shall be handled for the parties concerned, and the adoption registration certificate shall be issued, and the adoption relationship shall be established from the date of registration; If it does not meet the requirements stipulated in the adoption law, it shall not be registered and the reasons shall be explained to the parties concerned.
According to the above regulations, couples should register with the adoption registration authority in Harbin where their biological father or mother is located. An application for adoption shall be submitted at the time of registration; Sun Qiang and his wife's household registration book and identity card; Proof of marital status, whether there are children and the ability to raise and educate the adoptee issued by the unit where Sun Qiang and his wife work or by the villagers' committee or residents' committee; Medical institutions at or above the county level issue physical examination certificates, which prove that Sun Qiang and his wife have not suffered from diseases that are medically considered unsuitable for adopting children. Wu's grandparents should submit their household registration book and identity card, as well as proof that Wu actually assumes guardianship responsibility; Prove that Wu's parents are dead; Wu's grandfather agreed in writing to give Wu up for adoption.
After submitting the above documents and materials, the adoption registration authority shall examine and issue the adoption registration certificate within 30 days from the next day, and the adoption relationship shall be established from the date of registration.
3. The question of whether Wu can register his household registration after being adopted.
Article 16 of the Adoption Law stipulates that after the adoption relationship is established, the public security department shall register the adoptee registered permanent residence in accordance with the relevant provisions of the state.
Article 8 of the Measures for the Registration of Children Adopted by Citizens of China stipulates that after the establishment of the adoption relationship, if it is necessary to register or transfer the adoptee's household registration, the adopter shall go to the household registration authority with the adoption registration certificate and handle it in accordance with the relevant provisions of the state.
1992 The Notice of the Ministry of Public Security and the Ministry of Commerce on the Relationship between Household Registration and Food Supply promulgated and implemented by the Ministry of Public Security and the Ministry of Commerce on May 6 stipulates that if a child with the same household registration and food relationship is adopted across cities and counties in accordance with the relevant provisions of the adoption law, the adopter shall submit to the society the adoption notarial certificate and relevant certification materials (or copies) issued by the notary office of his domicile. According to the relevant provisions of the Adoption Law, if an urban resident adopts a child under the age of 14 from a rural area, the adopter shall submit an application to the household registration authority in the place where he moves in with the adoption notarial certificate and relevant supporting materials (or a copy) issued by the notary office in his domicile, which shall be audited by the municipal and county public security organs and reported to the local and municipal public security organs for handling in accordance with the relevant provisions of "urbanization".
The Opinions of the Ministry of Justice on Several Issues Concerning the Implementation of the Adoption Law of People's Republic of China (PRC), promulgated and implemented by the Ministry of Justice on March 3, 2000, stipulates that the notarization of adoption or dissolution of adoption by a notary office shall be conducted in accordance with the Provisional Regulations on Notarization and the Rules of Notarization Procedure (for Trial Implementation), focusing on examining whether the identity, the ability and intention of the parties are true, and whether there is a certificate of adoption registration or dissolution of adoption issued by the competent authority. If a notarization institution finds that the contents of the registration certificate violate the adoption law, it shall refuse notarization. If a husband and wife adopt together, and one party cannot be present in person for some reason, and the other party is present and submits a notarized power of attorney of the spouse, it shall be deemed to be present in person.
According to the above-mentioned laws and regulations, after handling the Adoption Registration Certificate for Wu, he should also go to the notary office to notarize the adoption relationship. Then, he applied to the household registration authority where his household registration is located with the adoption certificate, adoption registration certificate, household registration book and ID card, and went through the registration formalities for Wu registered permanent residence.