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Guiding Case No. 89: “Beiyan Yunyi” v. Yanshan Police Station under Lixia Branch of the Public Security Bureau of Jinan City (Case about dispute over public security administrative registration)
指导案例89号: “北雁云依”诉济南市公安局历下区分局燕山派出所公安行政登记案
【法宝引证码】

Guiding Case No. 89: “Beiyan Yunyi” v. Yanshan Police Station under Lixia Branch of the Public Security Bureau of Jinan City (Case about dispute over public security administrative registration) 指导案例89号: “北雁云依”诉济南市公安局历下区分局燕山派出所公安行政登记案
(Issued on November 15, 2017 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2017年11月15日发布)
Guiding Case No. 89 指导案例89号
Keywords 关键词
administrative; public security administrative registration; right of name; public order and good customs; justification 行政/公安行政登记/姓名权/公序良俗/正当理由
Key Points of Judgment 裁判要点
The selection or creation of a surname by any citizen should conform to the traditional Chinese cultural and ethical morality. A new surname selected or created beyond the surname of the father or mother only with personal preference and will does not fall under “any other justification not against public order and good customs” as prescribed in item (3) of paragraph 2 of the Interpretation of the Standing Committee of the National People's Congress on Paragraph 1 of Article 99 of the General Principles of the Civil Law of the People's Republic of China and Article 22 of the Marriage Law of the People's Republic of China. 公民选取或创设姓氏应当符合中华传统文化和伦理观念。仅凭个人喜好和愿望在父姓、母姓之外选取其他姓氏或者创设新的姓氏,不属于《全国人民代表大会常务委员会关于〈中华人民共和国民法通则〉第九十九条第一款、〈中华人民共和国婚姻法〉第二十二条的解释》第二款第三项规定的“有不违反公序良俗的其他正当理由”。
Legal Provisions 相关法条
Paragraph 1 of Article 99 of the General Principles of the Civil Law of the People's Republic of China 中华人民共和国民法通则》第99条第1款
Article 22 of the Marriage Law of the People's Republic of China 中华人民共和国婚姻法》第22条
Interpretation of the Standing Committee of the National People's Congress on Paragraph 1 of Article 99 of the General Principles of the Civil Law of the People's Republic of China and Article 22 of the Marriage Law of the People's Republic of China 全国人民代表大会常务委员会关于〈中华人民共和国民法通则〉第九十九条第一款、〈中华人民共和国婚姻法〉第二十二条的解释
Basic Facts 基本案情
Lv Xiaofeng, legal representative of plaintiff “Beiyan Yunyi,” alleged that: His wife Zhang Ruizheng gave birth to a girl in the hospital. They gave her a name “Beiyan Yunyi” and handled the birth registration and the household registration of newborns for further reference on the family planning service manual. When he handled the household registration for his daughter, defendant Yanshan Police Station under Lixia Branch of the Public Security Bureau of Jinan City (hereinafter referred to as “Yanshan Police Station”) refused to handle the household registration on the ground that the surname of the newborn must be that of the father or mother, namely, “Lv” or “Zhang.” In accordance with the provisions on the right of name in the Marriage Law of the People's Republic of China (hereinafter referred to as the “Marriage Law”) and the General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the “General Principles of the Civil Law”), Lv Xiaofeng requested the People's Court of Lixia District, Jinan City to confirm that defendant's refusal to handle household registration with “Beiyan Yunyi” as the name violated the law. 原告“北雁云依”法定代理人吕晓峰诉称:其妻张瑞峥在医院产下一女取名“北雁云依”,并办理了出生证明和计划生育服务手册新生儿落户备查登记。为女儿办理户口登记时,被告济南市公安局历下区分局燕山派出所(以下简称“燕山派出所”)不予上户口。理由是孩子姓氏必须随父姓或母姓,即姓“吕”或姓“张”。根据《中华人民共和国婚姻法》(以下简称《婚姻法》)和《中华人民共和国民法通则》(以下简称《民法通则》)关于姓名权的规定,请求法院判令确认被告拒绝以“北雁云依”为姓名办理户口登记的行为违法。
Defendant Yanshan Police Station contended that: In accordance with the laws and the provisions of superior documents, the act of refusing to handle household registration with “Beiyan Yunyi” as the name was correct. Although the General Principles of the Civil Law provided that citizens enjoyed the right of name, there were no specific provisions. In the reply on issues concerning children's change of surname after the divorce of their parents made on the press conference held by the Supreme People's Court on December 23, 2009, Article 22 of the Marriage Law was the special provision on children's surname in Chinese laws. It was provided in this Article that children may either take the surname of the father or mother, but there was no provision that children may take any third surname. The administrative organ should conduct law-based administration and it could not make an administrative act that was not specified in laws. Neither the plaintiff nor the administrative organ had the right to make an expanded interpretation, which meant that a child could only take either the surname of the father or mother. From another point of view, the law confirmed the right of name for the purpose of enabling a citizen to distinct himself or herself from others by using letter symbols, namely, the name, and realizing the citizen's personality and rights. The same as other rights, the right of name was limited by the law and could not be misused. It is a traditional custom of the Chinese ethnic peoples that a newborn infant uses the surname of the father or mother and such custom indicates kinship. By using the surname of the father or mother, the kinship indicated may avoid consanguineous marriage to a great extent; however, the use of a third surname is contrary to the traditional custom and the original intention of surname. In the implementation of the provisions of Article 22 of the Marriage Law on the surname of children, the public security organs across the country used the consistent standard, namely, children should take the surname of the father or mother. From the above, it was correct for defendant to refuse the handling of household registration of plaintiff with “Beiyan Yunyi” as the name applied by plaintiff's legal representative, and defendant requested the People's Court of Lixia District to dismiss the claims of plaintiff according to the law. 被告燕山派出所辩称:依据法律和上级文件的规定不按“北雁云依”进行户口登记的行为是正确的。《民法通则》规定公民享有姓名权,但没有具体规定。而2009年12月23日最高人民法院举行新闻发布会,关于夫妻离异后子女更改姓氏问题的答复中称,《婚姻法》二十二条是我国法律对子女姓氏问题作出的专门规定,该条规定子女可以随父姓,可以随母姓,没有规定可以随第三姓。行政机关应当依法行政,法律没有明确规定的行为,行政机关就不能实施,原告和行政机关都无权对法律作出扩大化解释,这就意味着子女只有随父姓或者随母姓两种选择。从另一个角度讲,法律确认姓名权是为了使公民能以文字符号即姓名明确区别于他人,实现自己的人格和权利。姓名权和其他权利一样,受到法律的限制而不可滥用。新生婴儿随父姓、随母姓是中华民族的传统习俗,这种习俗标志着血缘关系,随父姓或者随母姓,都是有血缘关系的,可以在很大程度上避免近亲结婚,但是姓第三姓,则与这种传统习俗、与姓的本意相违背。全国各地公安机关在执行《婚姻法》二十二条关于子女姓氏的问题上,标准都是一致的,即子女应当随父姓或者随母姓。综上所述,拒绝原告法定代理人以“北雁云依”的姓名为原告申报户口登记的行为正确,恳请人民法院依法驳回原告的诉讼请求。
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