After the missing child 15.

Liu He worked in Shanghai ten years ago, and soon they had a son, Niu Niu. The family was happy and satisfied, but a sudden change broke the original ordinary and peaceful life.

One afternoon just after her third birthday, Niu Niu played alone outside the construction site where Liu worked as usual, but her son was nowhere to be seen after work. Da Chun thought, anyway, his home is near the construction site. Maybe Niu Niu is playing with other children. But from night till late at night, the couple never saw their children come back. A sense of foreboding seized their hearts, and their first instinct was that their son might have been kidnapped. The fruitless search in the next few days strengthened their guess. The couple reported the case, but waiting indefinitely and missing their children made Da Chun and Yu Zhen decide to set foot on the road of finding children. And this road is five years.

Half a year ago, she became the nanny of Mr. Tian, a businessman in Wenzhou. Mr. Tian came to Shanghai on business, alone with his 7-year-old child. When Yu Zhen first saw Xiao Qiang, she was dumbfounded. How much he resembles his son Niu Niu! Soon, Mr. Tian also told me frankly that his 7-year-old son was adopted from a welfare home in Wenzhou five years ago because he and his ex-wife Ms. Li could not have children. Before the divorce, the couple regarded Xiao Qiang as their own child. After the divorce, Xiao Qiang followed Mr. Tian and Ms. Li to provide living expenses every month until Xiao Qiang came of age. This sentence made Yu Zhen pleasantly surprised. Mother-child nature made him feel that Xiao Qiang was his own son. So I quietly found what Mr. Tian said about Wenzhou welfare home, and I saw the photos when I first arrived at the welfare home five years ago in the archives. The clothes he wore on the day Niu Niu disappeared, and the blue coat he bought for his son as a birthday present, which Da Chun will never forget. It turned out that Niu Niu was indeed trafficked to Wenzhou, but the criminal gang was quickly captured by the police and Niu Niu was rescued. However, because Niu Niu was still young and could not contact her family, Niu Niu was sent to the welfare home and was soon adopted by Mr. Tian's family.

The surprise of reunion made Da Chun and Yu Zhen excited, but problems followed. First of all, Ms. Li, who is still in love, thinks that she will definitely take away her mother's position after her appearance, so she decides to continue to be an adoptive mother and provide support every month; Or sever the adoption relationship and refuse to pay alimony. At the same time, they think that they have done a lot for Xiao Qiang over the years, and Yu Zhen and Da Chun, as their biological parents, should give some compensation. Followed by Mr. Tian, because he can't have children, so he absolutely refused to give up, and he didn't know and stood on the side of his ex-wife's first plan. However, Da Chun claimed that he was the biological father of the child and they were related by blood, so he stood on Ms. Li's second plan. However, the child was abducted to Tianjia, which was not what the couple wanted, so they would not pay Ms. Ali a penny, and the child had to be solved.

Two fathers who love their sons are now in an uncompromising situation. Who is the father of the child? Da Chun wants her children back. Should she pay alimony to Mr. Tian and his ex-wife?

Written by: Wen Sheng of Yin Yueping, an Oriental Lawyer program.

Controversy focus:

Is it legal to send Xiao Qiang to a welfare home for adoption?

Case discussion

Live broadcast time: September 5, 2004

Guest: Zhu, lawyer of Shanghai Zhonghe Law Firm.

Lawyer Yu Jun of Shanghai Cheng Jintian Law Firm.

Sun Changlin, lawyer of Cheng Jintian Law Firm.

Moderator: Xie Hui

Xie Hui: This story begins with a tragedy with a dramatic turn in the middle. The audience always wants it to end in comedy. So, today we will pay attention to their fate.

Yu Jun: We think Mr. and Mrs. Liu should get custody of their children. Although on the surface, Mr. Tian seems innocent, and on the surface, the raising procedures he and his ex-wife went through at the beginning are legal, we should pay attention to this point: Xiao Qiang, that is, Niu Niu, is not an orphan or an abandoned baby, but should belong to the abducted children who have been rescued. Therefore, in this case, the welfare home has no right to take it out for adoption. The behavior of the welfare home is illegal in both substantive law and procedural law, so we think this adoption is invalid, and Da Chun should be able to get back the custody of the child. Secondly, on the issue of alimony, although we know that Mr. Tian's family has paid a lot of money for raising their children and should pay compensation, the key is who will pay compensation? We believe that the child's biological parents are also innocent, and it should be the welfare home with wrong behavior to fulfill the obligation of compensation. Because according to the law, abducted children should be temporarily raised by the civil affairs department after being rescued until their biological parents are found or other treatments are made. It can be seen from this case that neither the welfare home nor the civil affairs department has fulfilled this legal obligation, so the liability for compensation should be borne by the welfare home and the civil affairs department. This is our basic point of view.

Zhu: First of all, I also think that the couple's experience is very sympathetic, but from the legal point of view, I support Mr. Tian's approach. First, his adoption behavior conforms to the adoption law of our country and the relevant provisions of citizens' adoption of children. Five years ago, Xiao Qiang was trafficked to Wenzhou. After being rescued by the police, as a child who could not find his parents, he was sent to a welfare home. Although the case did not specify how Mr. Tian went through the adoption procedures as an adopter. However, China's adoption law and related laws and regulations have been formulated for many years, and local civil affairs departments also have corresponding administrative norms. Therefore, we believe that there will be no illegal procedures in the process of adopting children in welfare homes under the name of civil affairs departments. Second, according to the provisions of Article 23 of the Adoption Law of our country, the relationship between children and biological parents or other rights and obligations is destroyed by the establishment of the adoption relationship. Therefore, in this case, although the experience of Mr. and Mrs. Liu is sympathetic, their relationship with their children's parents was dissolved because of the establishment of the legal adoption relationship. Third, Liu's proposal to dissolve the adoption relationship does not conform to the relevant provisions of China's adoption law. According to the Adoption Law, the adoption relationship can only be terminated if the adopter fails to perform the obligation of raising children and maltreats or abandons minors to raise children. In this case, this obviously did not happen. As for the issue of alimony, there is no prerequisite for the invalidation or dissolution of the adoption relationship, so there is no question of returning alimony.

Lawyer Yang: I support lawyer Zhu's view that the adoption relationship is effective. I think we can learn from the principle of bona fide third party in civil law. Because adoptive parents obtain custody of their children through legal procedures in welfare homes, welfare homes should also perform legal procedures according to regulations, so the adoption relationship obtained in good faith should be effective. I think the adoption relationship should be maintained for the benefit of the children. Because the child has lived in the adoptive parents' home for five years, it is more favorable for the adoptive parents to continue to raise him in the future.

I have two more questions for my lawyer. 1. Since the adoption relationship has been established, how can the child's biological parents get back the custody of the child? 2. What are the obligations for children to support their adoptive parents and biological parents when they grow up?

Jie Hui: Lawyer Zhu, which one do you think is better than the two proposals put forward by Mr. Tian and his ex-wife?

Zhu: This case is a collision between family ties and legal principles. Indeed, blood is thicker than water. However, with the development of society and the change of ideas, many countries in the world stipulate that biological parents may be deprived of custody if they fail to fulfill their guardianship obligations, and the custody of their children may be transferred to a more suitable person. In fact, raising children is more of a responsibility, so we should not only emphasize the rights of parents, but also pay attention to how to safeguard the interests of children. Our country's adoption law also embodies this spirit, so don't think too much about the relationship between adoptive parents and biological parents. The protection of minors in China's General Principles of Civil Law also illustrates this point. In this case, Mr. and Mrs. Liu are also responsible for being trafficked, and the raising conditions of Mr. Tian's family are obviously better than those of Mr. and Mrs. Liu. Therefore, from the perspective of Xiao Qiang, I think the adoption relationship should be maintained.

Sun Changlin: Regarding Mr. Yang's first question, there are actually two legal relationships here. First, if the adoption relationship is not established, there is no question of dissolution, that is, it is invalid from the beginning. Second, if the adoption relationship is established, there will be the problem of dissolution of the agreement between the two parties.

Regarding the second question, according to the adoption law of our country, if the adoption relationship is established and exists effectively, the relationship between the child and the biological parents will be eliminated. Therefore, at this time, the child's support obligation is only for adoptive parents, not for biological parents.

Mr. Wu: I am not a lawyer or a legal worker. I can only talk from the perspective of an ordinary person. If I lose my child, whether I have money or not, I will spend all my money to find my own child. This is the traditional concept of China people. No one can be deprived of the right to raise children unless parents adopt them voluntarily. Especially when they finally found their own children after a long separation, their parents' feelings can be imagined.

Xie Hui: I think what we are discussing today is not the coordination between law and emotion, but the choice between the two emotions. On the one hand, it is to find the biological parents of children for many years, and on the other hand, it is difficult to give up these two feelings. The problem is that children are too young to make choices, and the pain is the adults on both sides. The focus of the question is, judging from the conditions given in this case, is it legal for the welfare home to give it to the Tian couple for adoption? If it is legal, the couple can only negotiate with Mr. Tian to solve the matter. If not, then the day when Xiao Qiang (Niu Niu) returns to her biological parents is just around the corner.

Yu Jun: Both sides in this case are innocent and deserve sympathy. However, we should also examine whether there are any illegal places in the process of welfare homes. Xiao Qiang, then three years old, was kidnapped and rescued by Fuzhou police. According to the relevant regulations on the rescue of abducted children issued by the Ministry of Public Security, if the rescued children cannot find their biological parents temporarily, they should be temporarily raised by the local civil affairs department. Pay attention to the word "temporary" here. Because this shows that the child has biological parents, which is essentially different from abandoning the baby-that is, the biological parents of the abducted child have no intention of abandoning the child subjectively. In this case, the child's biological parents were abducted by Niu Niu due to some negligence, not their subjective wishes. On the contrary, they are eager to find their children. Therefore, there should be a difference between abducted children and abandoned children. In the former case, welfare homes should raise children according to regulations so as to find their biological parents in the future. But in this case, what did the welfare home do? We noticed that Niu Niu, also known as Xiao Qiang, is seven years old. He was kidnapped when he was three years old. His adoptive parents, Mr. Tian and his family also adopted Niu Niu four years ago, so according to the time calculation, the welfare home gave it to Mr. Tian and his family for adoption as soon as it received Niu Niu. Therefore, it can be said that the welfare home has hardly fulfilled its obligation to raise children, has not actively searched for the biological parents of children, and has not provided the necessary time for the biological parents to find children, so the behavior of the welfare home is definitely illegal. We should also pay attention to the important elements of the Adoption Law on the adoption of children: First, parents are unable to support them. This case obviously does not belong to this situation; Second, it is an abandoned child or a child who can't find his parents, while Niu Niu is obviously not an abandoned child and belongs to a child who can't find his parents for the time being. This is essentially different from the situation that he can't find his parents, which means a temporary possibility. Therefore, the welfare home has failed to fulfill its obligation to find the child's biological parents, and at the same time, it has given the child to others for adoption, so as to avoid the obligation of raising. Niu Niu, as the object of adoption, is not qualified as the subject of adoption, so this kind of adoption is invalid.

Xie Hui: In front, a Mr. Yang put forward the concept of a bona fide third party, because Mr. and Mrs. Tian did not know that they should not be adopted by welfare homes. They were adopted in good faith. What do you think of this problem?

Yu Jun: I think the view of bona fide third parties is controversial. Because the system of bona fide acquisition is a system in property law, and the child is not an object, this is a legal relationship of two natures. Although Mr. Tian is innocent in this matter, the main fault lies in the welfare home, which should be liable for compensation to Mr. Tian and his ex-wife, and the children should be returned to their biological parents.

Xie Hui: Thank you for your debate and explanation. We have found a feasible way for Da Chun to get her child back. Of course, I think it is reasonable for couples to thank Mr. Tian morally and emotionally.

Expert comment: (after the child disappeared)

If there is a fault, there is a responsibility, and if there is no fault, there is no responsibility. The balance of law should be tilted to the latter between the wrong party and the innocent party.

In this case, Liu, and are at fault, according to the Supreme People's Court's "on the implementation.

Is there anything wrong with the welfare home? Due to the lack of information provided in this case, we don't know. Because welfare homes are obliged to find abandoned parents, there is no law. Article 15 1 of the current adoption law stipulates: "Adoption shall be registered with the people's government departments at or above the county level. The adoption relationship shall be established from the date of registration. " The second paragraph stipulates: "If 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." Accordingly, if it is necessary to adopt abandoned babies, abandoned babies and orphans raised by social welfare institutions who cannot find their biological parents, they must apply to the civil affairs department for adoption registration, and the civil affairs department shall review the conditions of the adopter according to law and make an announcement if they meet the conditions. After the expiration of the announcement, if no one claims the child or raises other objections, it shall be registered and issued with an adoption certificate, and the adoption relationship shall be established. The purpose of stipulating administrative registration procedure is to make this adoption relationship under the direct supervision of government functional departments, to facilitate the establishment and improvement of management files for future reference, and to protect the legitimate rights and interests of adoptees and adopters more comprehensively. So we don't know whether the welfare home has gone through the administrative registration and announcement procedures of the civil affairs department. If it goes through these procedures, the welfare home is not at fault.

It is not known whether Mr. Tian and Ms. Li, as adopters, are at fault. Because the materials provided in this case did not tell us whether their adoption of Niu Niu was registered with the civil affairs department. If they register, there is nothing wrong.

Therefore, Niu Niu should be raised by an innocent party before 10. After 10, Niu Niu will choose by herself.