|
|
|
|
|
|
|
|
|
|
|
|
|
| Notice of the Supreme People's Court on Issuing the Seventeenth Group of Guiding Cases | | 最高人民法院关于发布第17批指导性案例的通知 |
| (No. 332 [2017] of the Supreme People's Court) | | (法〔2017〕332号) |
| The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region: | | 各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院： |
| Upon deliberation and decision of the Judicial Committee of the Supreme People's Court, five cases including Zhang Daowen, Tao Ren et al. v. People's Government of Jianyang City, Sichuan Province for dispute over infringement upon the operational rights of passenger tricycles (Guiding Cases No. 88-92) are hereby issued as the seventeenth group of guiding cases for reference in the trial of similar cases. | | 经最高人民法院审判委员会讨论决定，现将张道文、陶仁等诉四川省简阳市人民政府侵犯客运人力三轮车经营权案等五个案例（指导案例88-92号），作为第17批指导性案例发布，供在审判类似案件时参照。 |
| Supreme People's Court | | 最高人民法院 |
| November 15, 2017 | | 2017年11月15日 |
| Guiding Case No. 88 | | 指导案例88号 |
| Zhang Daowen, Tao Ren et al. v. People's Government of Jianyang City, Sichuan Province (Case about dispute over infringement upon the operational rights of passenger tricycles ) | | 张道文、陶仁等诉四川省简阳市人民政府侵犯客运人力三轮车经营权案 |
| (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） |
| Keywords: administrative; administrative licensing; time limit; duty to inform; administrative procedure; confirmation; judgment on illegality | | 关键词 行政/行政许可/期限/告知义务/行政程序/确认/违法判决 |
| Key Points of Judgment | | 裁判要点 |
| 1. The administrative licensing has a statutory time limit. When making an administrative licensing, the administrative organ should explicitly inform the administrative counterpart of the time limit of administrative licensing and the administrative counterpart also has the right to know the time limit of administrative licensing. | | 1. 行政许可具有法定期限，行政机关在作出行政许可时，应当明确告知行政许可的期限，行政相对人也有权利知道行政许可的期限。 |
| 2. The people's court does not uphold the claim of the administrative counterpart that the administrative licensing has no time limit only on the ground that the administrative organ does not inform him or her of the time limit. | | 2. 行政相对人仅以行政机关未告知期限为由，主张行政许可没有期限限制的，人民法院不予支持。 |
| 3. Where the administrative organ does not inform the administrative counterpart of the time limit when making an administrative licensing and afterwards terminates the administrative counterpart's administrative licensing rights on the ground of expiration of the time limit, the administrative organ violates the law in the administrative procedure, and the people's court should legally render a judgment to revoke the alleged administrative act. However, if the judgment on revocation of the alleged administrative act will bring adverse impacts on the public interests and the administrative order, the people's court should render a judgment to confirm that the alleged administrative act violates the law. | | 3. 行政机关在作出行政许可时没有告知期限，事后以期限届满为由终止行政相对人行政许可权益的，属于行政程序违法，人民法院应当依法判决撤销被诉行政行为。但如果判决撤销被诉行政行为，将会给社会公共利益和行政管理秩序带来明显不利影响的，人民法院应当判决确认被诉行政行为违法。 |
| Legal Provisions | | 相关法条 |
| Item (2) of Paragraph 1 of Article 89 of the Administrative Procedure Law of the People's Republic of China | | 《中华人民共和国行政诉讼法》第89条第1款第2项 |
| Basic Facts | | 基本案情 |
| On December 12, 1994, the People's Government of Jianyang City, Sichuan Province (hereinafter referred to as the “Government of Jianyang City”) implemented the quota management of passenger-carrying tricycles within the jurisdiction of Jianyang City in the form of an announcement. In August 1996, the Government of Jianyang City collected the paid use fee of CNY3,500 per operator of 240 passenger-carrying tricycles transformed from passenger-carrying elderly mobility scooters. In November 1996, the Government of Jianyang City collected the paid use fee of CNY2,000 per operator of the original 161 passenger-carrying tricycles. From November 1996, the Government of Jianyang City started to implement the paid use of operational rights and the relevant departments also collected the relevant fees on 401 passenger-carrying tricycles within the quota. On July 15 and 28, 1999, with respect to passenger-carrying tricycles whose time limit of paid use exceeded two years, the Government of Jianyang issued the Announcement on Improving the Operation Order of Small Vehicles in Urban Areas (hereinafter referred to as the “Announcement”) and the Supplementary Announcement on Improving the Operation Order of Small Vehicles in Urban Areas (hereinafter referred to as the “Supplementary Announcement”). In particular, the Announcement required that “operators of passenger-carrying tricycles originally with legal licenses must re-register their passenger-carrying tricycles in the office of the Traffic Police Brigade of Jianyang City from July 19 to July 20, 1999” and the Supplementary Announcement required that “the registrants obtaining the operational rights upon examination should pay the fees for paid use for operational rights according to the standard of CNY,000 per passenger-carrying tricycle (or CNY7,200 per passenger-carrying tricycle where the registrants complied with the provisions of Article 6 of the Announcement).” Zhang Daowen, Tao Ren, and other 180 operators of passenger-carrying tricycles deemed that Article 6 of the Announcement and Article 2 of the Supplementary Announcement issued by the Government of Jianyang City constituted double charges, which infringed upon their lawful operational rights. They filed an administrative lawsuit with the People's Court of Jianyang City, Sichuan Province and requested the Court to render a judgment to revoke the aforesaid Announcement and Supplementary Announcement issued by the Government of Jianyang City. | | 1994年12月12日，四川省简阳市人民政府（以下简称“简阳市政府”）以通告的形式，对本市区范围内客运人力三轮车实行限额管理。1996年8月，简阳市政府对人力客运老年车改型为人力客运三轮车（240辆）的经营者每人收取了有偿使用费3500元。1996年11月，简阳市政府对原有的161辆客运人力三轮车经营者每人收取了有偿使用费2000元。从1996年11月开始，简阳市政府开始实行经营权的有偿使用，有关部门也对限额的401辆客运人力三轮车收取了相关的规费。1999年7月15日、7月28日，简阳市政府针对有偿使用期限已届满两年的客运人力三轮车，发布《关于整顿城区小型车辆营运秩序的公告》（以下简称《公告》）和《关于整顿城区小型车辆营运秩序的补充公告》（以下简称《补充公告》）。其中，《公告》要求“原已具有合法证照的客运人力三轮车经营者必须在1999年7月19日至7月20日到市交警大队办公室重新登记”，《补充公告》要求“经审查，取得经营权的登记者，每辆车按8000元的标准（符合《公告》第六条规定的每辆车按7200元的标准）交纳经营权有偿使用费”。张道文、陶仁等182名客运人力三轮车经营者认为简阳市政府作出的《公告》第六条和《补充公告》第二条的规定形成重复收费，侵犯其合法经营权，向四川省简阳市人民法院提起行政诉讼，要求判决撤销简阳市政府作出的上述《公告》和《补充公告》。 |
| Judgment | | 裁判结果 |
| On November 9, 1999, in accordance with the provisions of item (1) of Article 54 of the Administrative Procedure Law of the People's Republic of China, the People's Court of Jianyang City, Sichuan Province rendered a judgment (No. 36 [1999], First, Administrative Division, Jianyang), in which the administrative acts of the Government of Jianyang City on July 15 and 28, 1999 were affirmed. Zhang Daowen, Tao Ren, and other operators refused to accept the judgment and appealed. On March 2, 2000, the Intermediate People's Court of Ziyang Region, Sichuan Province rendered an administrative judgment (No. 6 [2000], Final, Administrative Division, IPC, Ziyang), in which the appeal was dismissed and the original judgment was affirmed. On June 13, 2001, the Higher People's Court of Sichuan Province rendered an administrative ruling (No. 1 [2001], Administrative Division, HPC, Sichuan), in which the Intermediate People's Court of Ziyang City (former Ziyang Region), Sichuan Province was ordered to retry the case. On November 3, 2001, the Intermediate People's Court of Ziyang City, Sichuan Province rendered a judgment (No. 1 [2001], Final, Retrial, Administrative Division, IPC, Ziyang), in which the original judgments of first instance and second instance were set aside and the claims of plaintiffs were dismissed. Zhang Daowen, Tao Ren, and other operators refused to accept the aforesaid judgment and filed a petition with the Higher People's Court of Sichuan Province. On July 11, 2002, the Higher People's Court of Sichuan Province rendered a written notice on denying the application for retrial (No. 4 [2002], Administrative Division, HPC, Sichuan). Zhang Daowen, Tao Ren, and other operators refused to accept the aforesaid written notice and filed an application for retrial with the Supreme People's Court. On March 23, 2016, the Supreme People's Court ruled to bring the case to trial. On May 3, 2017, the Supreme People's Court rendered an administrative judgment (No. 81 [2016], Retrial, Administrative Division, SPC) that: (1) the judgment (No. 1 [2001], Final, Administrative Division, IPC, Ziyang) rendered by the Intermediate People's Court of Ziyang City, Sichuan Province should be set aside; and (2) the Announcement on Improving the Operation Order of Small Vehicles in Urban Areas and the Supplementary Announcement on Improving the Operation Order of Small Vehicles in Urban Areas issued by the Government of Jianyang City should be confirmed illegal. | | 1999年11月9日，四川省简阳市人民法院依照《中华人民共和国行政诉讼法》第五十四条第一项之规定，以（1999）简阳行初字第36号判决维持市政府1999年7月15日、1999年7月28日作出的行政行为。张道文、陶仁等不服提起上诉。2000年3月2日，四川省资阳地区中级人民法院以（2000）资行终字第6号行政判决驳回上诉，维持原判。2001年6月13日，四川省高级人民法院以（2001）川行监字第1号行政裁定指令四川省资阳市（原资阳地区）中级人民法院进行再审。2001年11月3日，四川省资阳市中级人民法院以（2001）资行再终字第1号判决撤销原一审、二审判决，驳回原审原告的诉讼请求。张道文、陶仁等不服，向四川省高级人民法院提出申诉。2002年7月11日，四川省高级人民法院作出（2002）川行监字第4号驳回再审申请通知书。张道文、陶仁等不服，向最高人民法院申请再审。2016年3月23日，最高人民法院裁定提审本案。2017年5月3日，最高人民法院作出（2016）最高法行再81号行政判决：一、撤销四川省资阳市中级人民法院（2001）资行再终字第1号判决；二、确认四川省简阳市人民政府作出的《关于整顿城区小型车辆营运秩序的公告》和《关于整顿城区小型车辆营运秩序的补充公告》违法。 |
| Judgment's Reasoning | | 裁判理由 |
| In the view of the Supreme People's Court, this case mainly involved the following three issues: | | 最高人民法院认为，本案涉及到以下三个主要问题： |
| With respect to the legality of the alleged administrative acts, from the perspective of application of law, Article 4 of the Regulation of Sichuan Province on the Administration of Road Transport provided that “the competent administrative departments of transport at all levels shall be responsible for adjusting the types of commercial vehicles and the number of commercial vehicles put in the market within their respective administrative regions”; and Article 24 thereof provided that “with the approval of the people's government at or above the county level, the operational rights of passenger transport may be subject to paid use.” Article 8 of the Provisions on the Administration of Passenger Transport by Small Vehicles in Sichuan Province (No. 359 [1994], Department of Transport, Sichuan) as formulated by the Department of Transport of Sichuan Province provided that “when implementing the quota management of small passenger-carrying vehicles, with the approval of the local government, the transport management departments of all cities, regions, and prefectures may adopt the method of paid use for operation licenses, but the time limit of paid use may not exceed two years.” It was thus clear that the local laws and regulations of Sichuan Province have specified that the operational rights of passenger transport may be subject to paid use. Although the regulatory document formulated by the Department of Transport of Sichuan Province was issued earlier than local laws and regulations, the provisions of such regulatory document that operation licenses were subject to paid use within the period of validity were not in conflict with local laws and regulations. On the basis of the needs of administrative law enforcement and public administration, it was necessary to set a certain time limit for the operational rights for passenger transport. From the perspective of the alleged administrative procedure, it was obvious that the procedure was inappropriate. The alleged administrative acts were measures in which the operators of passenger-carrying tricycles originally having legal licenses were re-registered, the qualified operators upon examination paid the fees for paid use, and those failed to be registered within the prescribed time limit voluntarily waived their rights. Such alleged acts were collection of fees for paid use from operators of passenger-carrying tricycles that have legally obtained operation licenses while the aforesaid operators of passenger-carrying tricycles obtained the rights in 1996 through licensing of the operational rights. There were succession and connection between the previous and subsequent administrative acts. With respect to the administrative act of licensing for operational rights in 1996, the administrative organ should specify the time limit of administrative licensing when making such administrative licensing and other beneficial administrative act. When the administrative organ made a decision on administrative licensing, the administrative counterparts also had the right to know the time limit of administrative licensing. When the administrative organ implemented the licensing of operational rights for passenger-carrying tricycles in 1996, it did not inform Zhang Daowen, Tao Ren, and other operators of the time limit of two years for paid use of passenger-carrying tricycles, and Zhang Daowen, Tao Ren, and other operators did not know the time limit for paid use of their operational rights. The licensing of operational rights by the Government of Jianyang City in 1996 was obviously inappropriate in the procedure, which directly caused obvious inappropriateness of the procedure for the alleged administrative act in this case that had succession and connection with such licensing. | | 关于被诉行政行为的合法性问题。从法律适用上看，《四川省道路运输管理条例》第4条规定“各级交通行政主管部门负责本行政区域内营业性车辆类型的调整、数量的投放”和第24条规定“经县级以上人民政府批准，客运经营权可以实行有偿使用。”四川省交通厅制定的《四川省小型车辆客运管理规定》（川交运〔1994〕 359号）第八条规定：“各市、地、州运管部门对小型客运车辆实行额度管理时，经当地政府批准可采用营运证有偿使用的办法，但有偿使用期限一次不得超过两年。”可见，四川省地方性法规已经明确对客运经营权可以实行有偿使用。四川省交通厅制定的规范性文件虽然早于地方性法规，但该规范性文件对营运证实行有期限有偿使用与地方性法规并不冲突。基于行政执法和行政管理需要，客运经营权也需要设定一定的期限。从被诉的行政程序上看，程序明显不当。被诉行政行为的内容是对原已具有合法证照的客运人力三轮车经营者实行重新登记，经审查合格者支付有偿使用费，逾期未登记者自动弃权的措施。该被诉行为是对既有的已经取得合法证照的客运人力三轮车经营者收取有偿使用费，而上述客运人力三轮车经营者的权利是在1996年通过经营权许可取得的。前后两个行政行为之间存在承继和连接关系。对于1996年的经营权许可行为，行政机关作出行政许可等授益性行政行为时，应当明确告知行政许可的期限。行政机关在作出行政许可时，行政相对人也有权知晓行政许可的期限。行政机关在1996年实施人力客运三轮车经营权许可之时，未告知张道文、陶仁等人人力客运三轮车两年的经营权有偿使用期限。张道文、陶仁等人并不知道其经营权有偿使用的期限。简阳市政府1996年的经营权许可在程序上存在明显不当，直接导致与其存在前后承继关系的本案被诉行政行为的程序明显不当。 |
| With respect to the time limit for operational rights of passenger-carrying tricycles, the applicants claimed that since the Government of Jianyang City did not inform them of the time limit of licensing when it implemented the licensing of operational rights for passenger-carrying tricycles in 1996, they thus believed that the operation licensing had no time limit. In the view of the Supreme People's Court, the Government of Jianyang City implemented the licensing of operational rights for passenger-carrying tricycles for the purpose of regulating the management order of passenger-carrying tricycles. The transport of passenger-carrying tricycles was a public resource allocation method involving public interests and it was necessary to set a certain time limit. Objectively, the Provisions on the Administration of Passenger Transport by Small Vehicles in Sichuan Province (No. 359 [1994], Department of Transport, Sichuan) formulated by the Department of Transport of Sichuan Province has specified the time limit of licensing. There were flaws in the procedure since the Government of Jianyang City failed to inform the time limit of licensing, but the applicants thus believed that such administrative licensing had no time limit, which was not upheld by the Supreme People's Court. | | 关于客运人力三轮车经营权的期限问题。申请人主张，因简阳市政府在1996年实施人力客运三轮车经营权许可时未告知许可期限，据此认为经营许可是无期限的。最高人民法院认为，简阳市政府实施人力客运三轮车经营权许可，目的在于规范人力客运三轮车经营秩序。人力客运三轮车是涉及到公共利益的公共资源配置方式，设定一定的期限是必要的。客观上，四川省交通厅制定的《四川省小型车辆客运管理规定》（川交运〔1994〕 359号）也明确了许可期限。简阳市政府没有告知许可期限，存在程序上的瑕疵，但申请人仅以此认为行政许可没有期限限制，最高人民法院不予支持。 |
| With respect to Zhang Daowen, Tao Ren, and other operators' actual enjoyment of policies of “benefiting the people,” according to the such actual local problems as severe overload of roads, serious air and noise pollution, “dirty, disorderly, and bad environment,” and “crowded, blocked, and narrow roads,” the Government of Jianyang City launched regulation work, which satisfied the needs of urban management and complied with people's wishes and the legality of such activities should be affirmed. In order to solve the remaining problems reported in complaints in this lawsuit, the Government of Jianyang City launched the campaign of “benefiting the people” for two times and made great efforts for the substantive settlement of disputes in this case, and its subsequent activities should also be affirmed. The Supreme People's Court confirmed the fact that Zhang Daowen, Tao Ren, and other operators accepted the capacity allocation scheme for delisting operation and made a commitment; however, when making an administrative act, the administrative organ must follow the principle of law-based administration in order to ensure that the administrative power should be exercised according to the statutory procedure. | | 关于张道文、陶仁等人实际享受“惠民”政策的问题。简阳市政府根据当地实际存在的道路严重超负荷、空气和噪声污染严重、“脏、乱、差”、“挤、堵、窄”等问题进行整治，符合城市管理的需要，符合人民群众的意愿，其正当性应予肯定。简阳市政府为了解决因本案诉讼遗留的信访问题，先后作出两次“惠民”行动，为实质性化解本案争议作出了积极的努力，其后续行为也应予以肯定。本院对张道文、陶仁等人接受退市营运的运力配置方案并作出承诺的事实予以确认。但是，行政机关在作出行政行为时必须恪守依法行政的原则，确保行政权力依照法定程序行使。 |
| In the view of the Supreme People's Court, there were flaws in the administrative procedures for the Announcement and the Supplementary Announcement issued by the Government of Jianyang City, which was obvious inappropriateness. However, considering that the traffic order in urban areas of Jianyang City were improved and the urban road operation capacities were enhanced after the alleged administrative acts were made, a majority of the original 401 tricycles have been replaced through the campaign of “benefiting the people” in two times, if the Supreme People's Court rendered a judgment to revoke the alleged administrative acts, it would bring obvious adverse impacts on the administrative order and public interests. In accordance with the relevant provisions on judgment on the relevant circumstances in Article 58 of the Interpretation of the Supreme People's Court on Several Issues concerning the Implementation of the Administrative Procedure Law of the People's Republic of China, the Supreme People's Court confirmed that the alleged administrative acts were illegal. | | 最高人民法院认为，简阳市政府作出《公告》和《补充公告》在行政程序上存在瑕疵，属于明显不当。但是，虑及本案被诉行政行为作出之后，简阳市城区交通秩序得到好转，城市道路运行能力得到提高，城区市容市貌持续改善，以及通过两次“惠民”行动，绝大多数原401辆三轮车已经分批次完成置换，如果判决撤销被诉行政行为，将会给行政管理秩序和社会公共利益带来明显不利影响。最高人民法院根据《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第五十八条有关情况判决的规定确认被诉行政行为违法。 |
| (Judges of the effective judgment: Liang Fengyun, Wang Haifeng, and Tong Lei) | | （生效裁判审判人员：梁凤云、王海峰、仝蕾） |
| Guiding Case No. 89 | | 指导案例89号 |
| “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) | | “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） |
| Keywords: administrative; public security administrative registration; right of name; public order and good customs; justification | | 关键词行政/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》第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》第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。
．．．．．． |
|
Dear visitor, as a premium member of this database, you will get complete access to all content.Please go premium and get more.
1. To become a premium member, please call 400-810-8266 Ext. 171.
2. Binding to the account with access to this database.
3. Apply for a trial account.
4. To get instant access to a document, you can Pay Amount 【￥1300.00】 for your single purchase. | |
您好：您现在要进入的是北大法宝英文库会员专区。
如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户；您可通过网上支付进行单篇购买，支付成功后即可立即查看本篇内容。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
|
| | | | | | | | |
Scan QR Code and Read on Mobile
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. Lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials as we dynamically expand content.
|
|
|
|
|
|