The adopter meets the following conditions:
No children; Have the ability to raise and educate the adoptee; Not suffering from diseases that are medically considered unsuitable for adopting children; At least 30 years old. If the adopter has a spouse, it must be decided by both husband and wife. Secondly, if the adopter adopts a collateral blood relative child within three generations, it is not restricted by Article 4, Item 3, Article 5, Item 3 and Article 9 of the Adoption Law, and the adoptee is under the age of 14. Overseas Chinese who adopt children of collateral blood relatives within three generations may not be restricted by item 1 of Article 6 of the Adoption Law. The number of children adopted by re-adopters can generally only adopt one child; However, orphans, disabled children, abandoned babies and children who can't find their biological parents are raised by social welfare institutions, so they can be exempted from childlessness and adoption restrictions.
Conditions of the adoptee:
Must be a minor under the age of 14; Orphans who have lost their parents \ abandoned babies and children whose parents cannot be found or whose parents have special difficulties in raising them.
I. Concept of adoption
Adoption system is an integral part of kinship system. In the law of relatives, apart from the meaning of adoption system, the word adoption is often used from the following two angles: First, adoption refers to the civil legal act of adopting another person's children as their own children according to legal conditions and procedures, so that the parties who have no parent-child relationship can have a legally imagined parent-child relationship. Adoption involves three parties: the adopter (adoptive parents) is the adopter, the adoptee (adopted child) is the adoptee, and the person or institution that gives the child or child to others for adoption is the adopter. Second, adoption refers to the adoption relationship, that is, the parent-child relationship of blood relatives. Adoption is a legal fact arising from the adoption relationship.
Adoption has the following legal characteristics:
Adoption is a civil legal act. Adoption is a civil legal act in which the parties to the adoption relationship express their consent to create a parent-child relationship between the adopter and the adoptee. Therefore, it belongs to the act of establishing civil legal relationship, and its purpose is to fabricate the civil rights and obligations between parents and children and terminate the original parent-child relationship. Adoption is not only related to the changes of personal relations and property relations of the parties involved in the adoption relationship, but also related to the overall interests of society. The laws of various countries stipulate certain conditions and procedures for adoption. Only when the adopter, the adopted person and the person placing out the child for adoption meet the legal conditions and perform the legal procedures can the expected legal effect of adoption be produced.
2. Adoption is an act of establishing or changing kinship and civil rights and obligations. Adoption refers to the behavior that the parties have similar rights and obligations between the adopter and the adoptee who have no natural blood relationship according to legal conditions and procedures, which leads to the change and transfer of kinship and civil rights and obligations based on kinship. At the same time, with the establishment of adoption, the civil rights and obligations between the adoptee and his biological parents have disappeared. Adoption is an act of identity law, which has the effect of fiction and revocation.
3. Adoption is an act of imitating blood relationship by legislation, which can be dissolved according to law. The parent-child relationship between the adopter and the adoptee established by the adoption relationship is a blood relationship invented by law, which can be produced by legal acts or artificially dissolved by legal acts.
4. Adoption can only happen between natural persons who are not directly related or have no direct blood relationship. Adoption lies in the establishment of the relationship between parents and children, which can only happen between people who have no direct blood relationship or indirect blood relationship. Adoption between lineal blood relatives is neither in line with the purpose of adoption nor of practical significance. 1 At the same time, adoption belongs to the change of relative status, which can only happen between natural persons, and the subject of rights other than natural persons does not have the identity of adopter and adoptee.
Adoption is different from foster care. Foster care refers to a way for parents to entrust others to raise their children when they can't directly fulfill their obligations of raising their children due to work and living conditions. The main difference between foster care and adoption is that (1) adoption is a legal fiction of the relationship between parents and children. The establishment of the adoption relationship has created a natural blood relationship between adoptive parents and adopted children, and at the same time eliminated the rights and obligations between adopted children and biological parents. There is no parent-child relationship between foster care and foster care, and the relationship of rights and obligations between foster care and biological parents has not been eliminated. Foster care costs are still borne by their biological parents. (2) Adoption is an act of establishing or changing the identity relationship, and only the adoption relationship established in accordance with the statutory formal and substantive conditions will have the expected legal effect. Foster care is a revision of parents' parenting style, which is generally not restricted by law. Article 17 of China's Adoption Law stipulates: "Orphans or children whose biological parents are unable to raise them may be raised by relatives or friends of their biological parents. The relationship between dependents and dependents does not apply to adoption. "
Two. Types of adoption
Adoption can be divided into different types according to different standards.
(1) Complete adoption and simple adoption
Adoption can be divided into complete adoption and simple adoption according to whether the rights and obligations between the adoptee and the biological parents are terminated. Complete adoption refers to the termination of the rights and obligations between the adoptee and his biological parents after the adoption relationship is established, and the relationship between adoptive parents and adopted children is equivalent to that between parents and legitimate children. Simple adoption, also known as incomplete adoption, means that the adoptee maintains parent-child relationship with his biological parents while establishing parent-child relationship with the adopter. In ancient China, "concurrently" was a simple adoption. In contemporary countries, France, Romania and other countries have established two systems of complete adoption and incomplete adoption at the same time, allowing the parties to choose freely.
(two) * * * including adoption and adoption alone.
According to the standard of the number of adoptions, adoption can be divided into simultaneous adoption and separate adoption. * * * Adoption refers to the adoption of children by both spouses. For example, China's Adoption Law stipulates that a husband and wife may not adopt their children unilaterally. Single adoption refers to one-person adoption, mainly refers to adoption without spouse (that is, single adoption).
(3) Private law adoption and public law adoption
Adoption in private law refers to the adoption behavior of citizens who directly change or transfer their kinship in accordance with the provisions of civil law. This is a common form of adoption in various countries. Public law adoption refers to the adoption of orphans and abandoned children by a child welfare institution or social charity established by the state according to law, without transferring legal kinship. Strictly speaking, the adoption of public law is beyond the scope of this chapter.
(4) Legal adoption and factual adoption
Adoption is divided into legal adoption and factual adoption according to whether it is legally established or not. Adoption established according to the substantive and formal conditions stipulated by law is legal adoption. According to the substantive requirements of the law, the parties live together for a long time in the relationship between parents and children, and the surrounding people also think that it is the relationship between parents and children, but it is a factual adoption without going through the adoption procedures. China conditionally recognized de facto adoption.
(5) Effective adoption and invalid adoption
Adoption can be divided into effective adoption and invalid adoption according to whether it conforms to the legal provisions and has legal effect. An adoption that meets the conditions prescribed by law and can produce legal effect is an effective adoption. An adoption that does not conform to the law and cannot produce legal effect is an invalid adoption.
(6) Adoption before death and adoption by will
Prenatal adoption refers to the adoption of children to establish laws to imitate blood relatives during the adoption life. Adoption by will refers to the act that the adopter determines his adopted children through his will. Because testamentary adoption focuses on inheritance and inheritance, which is not conducive to the support and protection of minors, adoption laws in various countries generally adopt antemortem adoption.
Third, the development of the adoption system in New China.
After the founding of New China, with the great changes of social political system and economic system, the adoption system will inevitably change. However, this change was gradually completed on the basis of more than 40 years of work practice after the founding of the People's Republic of China. This process can be roughly divided into the following stages:
(1) In the early days of People's Republic of China (PRC). After the founding of New China, Article 13 of the Marriage Law 1950 stipulates: "Parents have the obligation to raise and educate their children; Children have the obligation to support and assist their parents; Neither party shall abuse or give up. The relationship between adoptive parents and adopted children shall be governed by the provisions of the preceding paragraph. " This is the principle of adoption law. There are no provisions on the conditions, procedures, effectiveness and dissolution of adoption in this law. In judicial practice, it is generally handled according to the Supreme People's Court's reply, which mainly includes: abolishing the heir system and dealing with the relationship between the heir and the decedent according to the specific situation. If the heir and the decedent have lived and supported each other for a long time, and the relationship between adoptive parents and adopted children has been formed, the existence of adoption relationship can be confirmed. If the heir and the decedent have no life and support relationship, the existence of adoption relationship should not be confirmed. Adoption can be written or oral. Adoption emphasizes the principle of voluntariness and does not limit whether the adoptee is a close relative or someone else. The relationship between adoptive parents and adopted children is the same as that between biological parents and children, and they shall not discriminate, abuse or abandon each other. From the early days of the People's Republic of China to the 1970s, the cases of adoption disputes and the confirmation of adoption relationship in inheritance cases accepted by the people's courts were handled in accordance with the provisions of the Marriage Law of 1950 and the above-mentioned relevant provisions.
(2) the Supreme People's Court1February 2, 979 "Opinions on Implementing Civil Policies and Laws" (hereinafter referred to as "Opinions") on adoption. 1at the second national conference on civil trial held in February, 978, the Supreme People's Court proposed that all civil policies and laws of the party and the state should be strictly implemented. On the basis of collecting and sorting out the Supreme People's Court's relevant replies and summarizing the trial practice experience of the people's courts, the contents of the Opinions on adoption are further enriched: (1) The conditions and procedures for adoption are clarified. Adoption of a child must be approved by the biological parents or guardians and adoptive parents; If the child has the ability to recognize, he must obtain the consent of the child, and then go through the adoption procedures and household registration with the relevant departments before he can be established. (2) The principle that adoptive parents or biological parents go back on their word is stipulated. After the establishment of the adoption relationship, if there is any dispute over one party's repentance, the people's court shall mediate; If mediation fails, the judgment shall be made according to the actual relationship between the adopted child and adoptive parents and biological parents, as well as the opinions of the adopted child, and according to the principle of benefiting the adopted child. (3) The principle of handling alimony compensation is stipulated. If the biological parents go back on their word, the biological parents can make compensation as appropriate according to the actual raising expenses of the adoptive parents, the economic ability of the biological parents and the local general living standard. If the adoptive parents go back on their word, whether to compensate the alimony should be handled appropriately according to the actual situation. (4) The principle of dissolution of adoptive relationship between adoptive parents and adult children is stipulated. After the adopted child became an adult, the relationship with the adoptive parents deteriorated, and one party proposed to dissolve the adoption relationship, but the mediation by the court was invalid, and the relationship between the two parties did break down. If the continuation is really unfavorable to the adoptive parents' later life or the future of their adopted children, they may decide to grant the dissolution. After the dissolution of this adoptive relationship, if the adoptive parents are old and have no financial resources, the adopted children will pay a certain amount of living expenses, or they can be judged as paying long-term living expenses. If it is difficult to raise a child, it can be handled appropriately according to the actual situation.
(3) 1980 Provisions on adoption in the Marriage Law and related judicial interpretations. 1980 the original provisions of article 20 of the marriage law; "The state protects the lawful adoption relationship. The rights and obligations between adoptive parents and adopted children shall be governed by the relevant provisions of this Law on the relationship between parents and children. The rights and obligations between adopted children and biological parents are eliminated due to the establishment of the adoption relationship. " 1980 marriage law further clarifies the legal consequences of the establishment of adoption relationship. However, there are still no detailed provisions on the conditions, procedures, effectiveness and dissolution of adoption. 1On August 30th, 984, the Supreme People's Court adopted the Opinions on Several Issues Concerning the Implementation of Civil Policies and Laws, which made special provisions on adoption. The main contents are as follows: (1) Establishment of adoption relationship: with the consent of biological parents and adoptive parents, with the consent of identifiable adoptees, and with legal procedures, adoption relationship should be protected according to law. If one of the biological parents does not agree, the adoption relationship cannot be established. When the biological father or mother puts out the child for adoption, the other party knows that there is no objection, which is regarded as consent. Although the adoptive parents didn't express their clear consent at the time of adoption, it should be considered that a de facto adoption relationship has been formed in the long-term life after adoption. If the children adopted by one spouse always disagree with the other spouse, only the adoption relationship with the adoptive spouse is recognized as valid. (2) de facto adoption relationship; Relatives and friends, the masses recognized or relevant organizations proved that the parties clearly lived with adoptive parents and adopted children for a long time. Although there is no legal procedure, it should be treated as an adoption relationship. (3) Relationship between adoptive grandparents and adopted grandchildren: If the adopter adopts others as grandchildren, it shall be deemed that the relationship between adoptive grandparents and adopted grandchildren has indeed been formed. When resolving adoption disputes or rights disputes, they can be handled reasonably in accordance with the relevant provisions of the Marriage Law on adoptive parents and adopted children. (4) the treatment of adoption estoppel; After the establishment of the adoption relationship, if the adoptive parents or biological parents go back on their word and ask for the dissolution of the adoption relationship, the people's court shall find out the reasons for the dissolution, listen to the opinions of the adoptee, and decide whether to approve the dissolution according to the principle of being conducive to the healthy growth of the adopted children. (5) The dissolution of the adoption relationship shall be terminated if the adoptive parents fail to raise their children to grow up healthily and the biological parents demand the dissolution of the adoption relationship. If adoptive parents find that their adopted children have physical defects or other diseases and ask for the dissolution of the adoption relationship, they will generally not be dissolved; However, if the biological parents deliberately conceal it when giving it up for adoption, they may be released. The relationship between adoptive parents and adopted children has deteriorated, and continuing to live together is really not conducive to the normal life of both sides. If one party insists on dissolving the adoption relationship, it can generally be granted to dissolve it. (6) The rights and obligations between adopted children and adoptive parents are terminated due to the dissolution of the adoption relationship. When the adoption relationship is terminated, the adopted child has been raised by the adoptive parents and has lived independently, but if the adoptive parents are old and unable to work and have no source of income, the adopted child should bear the living expenses of the adoptive parents in their later years. If the biological parents ask for the dissolution of the adoption relationship, the adoptive parents may ask for compensation for the living expenses and education expenses of the adopted child during the adoption period; If the adoptive parents ask for the dissolution of the adoptive relationship, they will generally not be compensated. After the dissolution of the adoption relationship, restore the rights and obligations between the minor adoptee and his biological parents; The rights and obligations of adult adoptees who live independently from their biological parents must be restored with the written consent of both parties.
(4) People's Republic of China (PRC) Adoption Law. 19911On February 29th, the 23rd meeting of the 7th the NPC Standing Committee passed the People's Republic of China (PRC) Adoption Law, which came into effect on April 29th. This law is divided into six chapters and 33 articles. The first chapter, General Provisions, is about the purpose and principles of legislation. The second chapter is about the establishment of the adoption relationship, which is about the provisions of the substantive elements and formal elements of adoption. Chapter iii effectiveness of adoption. Chapter IV Dissolution of adoption relationship is the stipulation on the conditions, procedures and consequences of dissolution of adoption relationship. Chapter V Legal Responsibility refers to measures to investigate criminal responsibility. Chapter VI Supplementary Provisions.
The implementation of the adoption law has played an important role in regulating the adoption behavior. However, with the development of society, the disadvantages of the adoption law began to be exposed in practice, mainly as follows: (1) The adoption conditions are too strict, resulting in many orphans and abandoned babies not being adopted by people who are willing to adopt children. The heavy burden of social welfare institutions is not conducive to the healthy growth of orphans and abandoned babies. (2) The adoption procedure is not uniform. According to the Adoption Law, there are three adoption procedures: written adoption agreement, adoption registration and adoption notarization. A variety of programs have caused many loopholes in application. In order to reasonably determine the adoption conditions, improve the adoption procedures, and further protect the legal adoption relationship,1On 4 October, the Fifth Session of the Standing Committee of the Ninth NPC made the Decision on Revision, which revised the adoption law of 199 1, and the decision was made from14 April 1999. Adoption Law (Amendment) is the basic norm of adoption relationship in China.
(five) the relevant provisions of the Marriage Law (Amendment). The Marriage Law (Amendment) 200 1 was promulgated and implemented on April 28th. The Marriage Law (Amendment) retains the principle of adoption, and Article 26 stipulates: "The state protects the lawful adoption relationship. The rights and obligations of adoptive parents and adopted children shall be governed by the relevant provisions of this Law on the relationship between parents and children. The rights and obligations of adopted children and biological parents are eliminated due to the establishment of the adoption relationship. " This provision of the Marriage Law further clarifies that the legal adoption relationship is protected by law, and the relationship between parents and children is applicable to the rights and obligations between adoptive parents and adopted children who establish the adoption relationship according to law. The Marriage Law (amendment) has not changed the essence of adoption, but considering the revision of other contents of the Marriage Law, especially the provisions on the relationship between parents and children, the relationship between adoptive parents and children has also improved to some extent.
Four, the basic principles of China adoption law.
The basic principles of China's adoption law reflect the essence and characteristics of China's adoption law, which is the criterion for the parties involved in the adoption relationship to establish the adoption relationship, and also the criterion for the people's court to correctly apply the adoption law and improve the quality of handling cases. Article 2 of China's Adoption Law (Amendment) stipulates: "Adoption should be conducive to the upbringing and growth of adopted minors, follow the principle of equality and voluntariness, and must not violate social morality." Article 3 stipulates: "Adoption shall not violate family planning laws and regulations." It can be seen that the basic principles of our adoption law are as follows:
(1) The principle of being conducive to the upbringing and growth of adopted minors.
Although China's Adoption Law (Amendment) does not absolutely prohibit the adoption of adults, according to the provisions of Article 4 of the Law, the adoptees are mainly confined to orphans, abandoned babies who cannot find their biological parents and minors whose biological parents have special difficulties and are unable to support them. The primary purpose of implementing the adoption system is to ensure the healthy growth of minors. By establishing a legal and effective adoption relationship, adopted minors can grow up healthily in a harmonious and happy family. Therefore, China's adoption law clearly stipulates the conditions of the adopter, requiring the adopter to have the ability to raise and educate the adoptee. At the same time, people who put out children for adoption should also meet certain conditions, and it is forbidden to buy or sell children in the name of adoption. The law does not stipulate and protect the adoption behavior that is not conducive to the upbringing and growth of adopted minors.
(2) The principle of equality and voluntariness
The principle of equality and voluntariness in the adoption relationship means that the parties to the adoption relationship have equal legal status, and the intention to establish or terminate the adoption relationship is voluntary. Adoption is an act of establishing kinship, and the parties must reach an agreement through consultation on an equal legal status before establishing adoption, and one party may not force the other. The Adoption Law (Amendment) stipulates that adoption shall be voluntary by both the adopter and the adoptee. If the adoptee is over the age of 10, the consent of the adoptee must be obtained. At the same time, the adopter and the adoptee can terminate the adoption relationship by agreement. If the adoptee is over the age of 10, the consent of the adoptee shall be obtained. If the parties to the adoption relationship cannot reach an agreement to terminate the adoption relationship, they may bring a lawsuit to the people's court. It can be seen that the principle of equality and voluntariness is not only reflected in the establishment of adoption, but also in litigation.
(three) shall not violate the principle of social morality.
Adoption not only involves the personal interests of the parties involved in the adoption relationship, but also affects the interests of the public. Adoption should follow the principle of social morality. Article 9 of the Adoption Law (Amendment) stipulates: "If a man without a spouse adopts a woman, the age difference between the adopter and the adoptee is over 40 years old." The Adoption Law (Amendment) also stipulates that if the adopter abuses or abandons the legitimate rights and interests of underage adopted children, the adopter has the right to request the dissolution of the adoption relationship; If an adopted child maltreats or abandons his adoptive parents as an adult, the adoptive parents also have the right to demand compensation from the adopted child for living expenses and education expenses during the adoption period. In order to stabilize the adoption relationship, Article 22 of the Adoption Law (Amendment) also stipulates: "If the adopter or adoptee requests to keep the adoption secret, others shall respect their wishes and shall not disclose them."
(four) does not violate the principle of family planning.
Family planning is the basic national policy of China and the basic principle of China's marriage law. Since adoption involves the upbringing of children, it should follow the principle of family planning. The Adoption Law (Amendment) strictly restricts the adoption conditions from all aspects: only childless people who have reached the age of 30 can adopt, and generally only 1 child can be adopted. It is forbidden for adopters to have children in violation of family planning regulations on the grounds of adopting children.
Section 2 Establishment of Adoption Relationship
According to the provisions of the Adoption Law, the establishment of an adoption relationship in law should meet two conditions: first, the parties to the adoption relationship should meet certain conditions stipulated by law, which is an essential element for the establishment of the adoption relationship; Second, certain procedures should be performed according to law, which is a formal requirement for the establishment of the adoption relationship. Only when the adoption relationship meets these two conditions can it have legal effect.
First, the substantive conditions for the establishment of adoption
The substantive conditions of adoption refer to the qualifications that should be possessed to establish an adoption relationship according to law. China's Adoption Law (Amendment) stipulates certain conditions for adopters, adoptees and adopters, as well as other conditions for the establishment of a special adoption relationship.
(a) the substantive conditions of the general adoption relationship
1. Conditions of the adopter. Article 6 of the Adoption Law (Amendment) stipulates: "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 of age. " According to this provision, the adopter should meet the following substantive conditions:
(1) No children. According to China's family planning policy, couples can only have one child. In order to prevent the parties from evading the law through adoption, the adoption law lists the principle of family planning as one of the basic principles, requiring the adopter to have no children. The "children" here refer to children born in wedlock, children born out of wedlock, adopted children and stepchildren who form a factual relationship with their stepparents.
"Childless" means that one or both spouses as adopters are infertile, childless, or although they are fertile, both spouses are unwilling to have children, or the children born to them have died, resulting in childlessness. If the adopter has no spouse, he should also have no children.
However, 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 restrictions of adopting childless children and adopting one.
(2) Have the ability to raise and educate the adoptee. The main purpose of adoption is to make the minor adoptee grow up healthily, and the adopter should have the ability to raise and educate the adoptee. This "educational ability" requires that the adopter should be a person with full capacity for civil conduct, and at the same time meet the conditions for raising and educating the adoptee in terms of economic conditions, moral quality and physical quality. A person who has a bad moral character, loves leisure and hates work, and can't support himself cannot be adopted.
(3) At least 30 years old. The minimum age requirement for adopters before the revision of the adoption law is 35 years old, and 1999 is 30 years old after the revision of the adoption law. Where a husband and wife jointly adopt a child, both husband and wife shall be at least 30 years old. The legislative reasons for this provision are: first, to stabilize the adoption relationship and facilitate the adopter to raise the adoptee. The laws of all countries stipulate that there must be a certain age gap between the adopter and the adoptee, so that the adopter can do his best to raise the adoptee. At the same time, when the adopter reaches a certain age, he has enough financial resources and energy, which is conducive to raising the adoptee. Second, based on the principle of family planning. Infertility can be divided into permanent and temporary. Only at a certain age, those who are diagnosed as infertile will have the psychological need to adopt other people's children, so as to love the adopted children more; At the same time, since it is clear that there is no fertility, it is impossible for children who adopt others to have their own children, which is also conducive to the implementation of the family planning principle.
(4) Not suffering from diseases that are medically considered unsuitable for adopting children. The adopter suffers from mental illness or other serious diseases, which directly affects the healthy growth of the adopted child. At the same time, most people suffering from mental illness or other serious diseases lose their ability to work and have no corresponding financial resources, so it is difficult to provide a good environment and conditions for the healthy growth of the adoptees.
(5) Other conditions. The adoption law also stipulates other conditions for the establishment of a general adoption relationship. Article 8 of the Adoption Law (Amendment) stipulates: "An adopter can only adopt one child." Article 9 stipulates: "If a man without a spouse adopts a woman, the age difference between the adopter and the adoptee should be over 40 years old." Article 10 also stipulates that: "If a spouse adopts a child, it must be adopted by both husband and wife."
2. Conditions of the adoptee. Article 4 of the Adoption Law (Amendment) stipulates that the adoptee shall meet the following conditions:
(1) should be a minor under 14. The upper age limit of the adoptee is determined by law in order to stabilize the established adoption relationship. China's General Principles of Civil Law takes 18 as the age limit, and divides people with full capacity for civil conduct and people with limited capacity for civil conduct. Take 10 as the age limit to divide people with limited capacity for civil conduct and people without capacity for civil conduct. /kloc-children under 0/4 years old have no ability to live independently, need the care of others, and are easy to establish close feelings with their parents and children. Therefore, the adoptee must first be a minor under 14.
(2) cannot be raised by biological parents. The adoptee only needs adoption if he can't be raised by his biological parents. These people include: ① orphans who have lost their parents. Orphans mentioned in the Adoption Law (Amendment) refer to minors under the age of 14 whose parents have died or whose parents have been declared dead by the people's court. 4 2 abandoned babies and children who can't find their biological parents. Abandoned babies and children as adoptees refer to abandoned babies and children who have been confirmed by public security organs according to law and cannot find their biological parents. (3) Children whose parents have special difficulties and are unable to support them. Only when the biological parents are unable to raise their children economically, physically and mentally due to illness or other reasons can these children become adoptees.
3. Conditions of the adopter. There are three kinds of people who will give their children up for adoption. Different types of people have different requirements.
(1) When the biological parents are adopters, the adopters should have the following characteristics: ① Due to special difficulties, they are unable to raise their children, and it is the legal obligation of parents to raise minor children. However, due to illness, disability, financial difficulties or the death of one of the biological parents.
If they are unable to fulfill their obligations of raising their children, in order to make these children grow up healthily, they can be given to others for adoption on the grounds that they are unable to raise their children due to special difficulties. (2) If the biological parents give their children to others for adoption, both parties must cooperate with the adoption. Even children born out of wedlock or divorced parents must be given up for adoption after consultation with their parents. However, if one of the biological parents is missing or can't be found, he can be released for adoption unilaterally. (3) If one of the parents dies, the parents of the deceased (that is, the grandparents of the minor children) have priority in custody when the living parents request to adopt the minor children. (four) biological parents shall not give birth to children in violation of family planning regulations on the grounds of placing them out for adoption.
(2) When the guardian of the non-biological parents sends the orphan for adoption, the person who sends the orphan for adoption shall:
(1) If a minor's parents are both dead, and the guardian puts out an orphan for adoption, he shall obtain the consent of the person who has the obligation to support him. According to China's General Principles of Civil Law, guardians of minor orphans mainly include grandparents; Adult brothers and sisters; Other close relatives and friends are willing to assume the responsibility of guardianship, with the consent of the unit where the minor's parents belong or the residents' committee or villagers' committee where the minor belongs; The unit where the minor's parents belong or the residents' committee, villagers' committee or civil affairs department where the minor belongs. Therefore, the above-mentioned guardian should obtain the consent of the person who has the obligation to support him when giving him up for adoption. People who have the obligation to support mainly refer to grandparents, grandparents and adult brothers and sisters with financial ability. 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. (2) 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, except that his parents may cause serious harm to the minor.
(3) Social welfare institutions as adopters. Social welfare institutions refer to social organizations established by civil affairs departments to adopt orphans whose parents have died and whose other relatives are unable to support them, as well as abandoned babies and children whose biological parents cannot be found. If the adopter meets the statutory requirements, he may adopt a minor in a social welfare institution. However, the Adoption Law (Amendment) does not clearly stipulate the qualifications of social welfare institutions as adopters. According to Article 3 of the Measures for the Registration of Children Adopted by Citizens of China promulgated on May 25th, 1999, "If abandoned babies, children and orphans raised by adoption social welfare institutions cannot be found, they should be registered with the adoption registration authority where the social welfare institutions are located." Paragraph 2 of Article 6 stipulates that if a social welfare institution is an adopter, it shall submit to the adoption registration authority the original records of abandoned babies and children entering the social welfare institution, the certificate issued by the public security organ to pick up abandoned babies and children and report the case, or the certificate that the biological parents of orphans are dead or declared dead. Therefore, social welfare institutions, as adopters, should have corresponding supporting materials and go through the adoption registration procedures.
(two) the substantive conditions of the special adoption relationship
1. Adopt children who are collateral blood relatives of the same generation within three generations. Article 7 of the Adoption Law (Amendment) stipulates that children of the same generation who are blood relatives within three generations can be adopted by relatives, without the following restrictions: (1) children whose parents have special difficulties and are unable to raise them; (2) If a man without a spouse adopts a woman, the age difference between the adopter and the adoptee is over 40 years old; (3) The adoptee is under the age of 14. However, the adopter should still have the ability to raise and educate the adoptee and must have no children. However, overseas Chinese who return to China to adopt children who are collateral blood relatives of the same generation within three generations can be exempted from the restriction that the adopter has no children.
2. Adopt orphans, disabled children or abandoned babies and children whose biological parents cannot be found. Article 8 of the Adoption Law (Amendment) stipulates that orphans, disabled children who can't find their biological parents, abandoned babies or children raised by social welfare institutions can adopt 1 child without the restriction that the adopter has no children. However, when adopting these children, they should still meet other substantive conditions of the general adoption relationship.