Should the court support the old man's request for "taking the grandson's fee"?
There have been many cases in which the elderly have recourse to the "cost of bringing their grandchildren", and experts say that "the elderly have recourse"
Taking care of children is the responsibility of parents, but this responsibility is actually borne by many families.
Recently, an old man in Jinan, Shandong Province sued his son for more than 20,000 yuan, which was supported by the court. The reporter's search found that there have been many cases similar to the old people's recourse to "bringing grandchildren's expenses" in the country.
These cases make people think: What kind of expenses is "bringing grandchildren"? Do the elderly have the obligation to take care of their grandchildren and the right to take care of their grandchildren? What is the problem behind the old man's request for "bringing grandchildren's expenses"?
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Sue my son for more than 20 thousand yuan "taking grandchildren"
Recently, in a case of "bringing grandchildren's expenses" concluded by the Licheng District Court of Jinan City, Shandong Province, Lao Liu remembered that his son Liu Moumou and his daughter-in-law were running around, and it was not easy to bring two children, so he took the initiative to bring his grandson. Liu wrote an agreement to Lao Liu, promising to pay 300 yuan alimony every month, but since then this agreement has become a "blank check". Lao Liu communicated with his son many times because of emotional problems, but his son always prevaricated for various reasons. In a rage, Lao Liu sued his son to the court and asked his son Liu to pay the unpaid "grandson fee" of more than 20,000 yuan.
After mediation, Liu refused to pay and refused to appear in court. The court ruled that parents have the obligation to raise their children according to law, and Liu has the ability to raise children. It is not Liu's legal obligation to raise his grandson Xiao Liu. And in the agreement signed with Lao Liu, Liu promised to pay Xiao Liu a monthly maintenance fee of 300 yuan, but its failure to fulfill it will inevitably lead to an increase in the amount of contribution that Lao Liu undertakes to support him. Lao Liu should not only devote himself to taking care of Xiao Liu, but also spend more money to ensure Xiao Liu's normal life. As the party whose interests are damaged, Lao Liu has the right to ask Liu to pay the unpaid alimony. In the end, the Licheng District Court ruled that Liu paid Lao Liu a "grandchild fee" of more than 20,000 yuan. Neither party appealed and the judgment came into effect.
In addition to the above judgments, the reporter searched the China Judgment Document Network and found that there were three cases in which the elderly in Wuxi, Jiangsu Province, Pingxiang, Jiangxi Province and Feng Dan, Shaanxi Province recovered the "grandchild fee". In addition, according to public reports, there are similar cases in Shantou, Guangdong, Deyang, Sichuan and Luchuan, Guangxi.
"In fact,' bringing grandchildren' is not a legal concept, but a popular name for some people." Lawyer You Zhilong, director of the Marriage and Family Law Committee of Guangdong Lawyers Association and senior partner of Guangdong Jinglun Hou Jun Law Firm, said, "The so-called' caring for grandchildren' is essentially the compensation or remuneration for the expenses incurred by parents of minor children who cannot perform their guardianship duties and take care of their children for various reasons."
Controversy continues.
There are cases of parent-child disputes caused by "negotiorum gestio"
Among the three cases that the reporter searched online from China's refereeing documents, one was a dispute over negotiorum gestio and the other two were labor contract disputes.
According to the law, negotiorum gestio refers to the management behavior without legal or agreed obligations in order to avoid the loss of others' interests. Negotiorum gestio has the right to require the beneficiary to repay the necessary expenses and actual losses.
In the dispute case of negotiorum gestio in the second instance of Wuxi Intermediate People's Court, Cai Popo and Zhang Abo were husband and wife, and Zhang Moumou was the son of Zhang Abo and his ex-wife. Zhang Moumou and Wang were originally husband and wife. They gave birth to their son Zhang on 1990 and divorced on 1999. In 2000, Zhang Moumou remarried Miao Moumou. Cai's mother-in-law sued that Zhang had been raised and educated by Cai's mother-in-law from the second day of his birth to 13 years old. Cai Popo has no legal obligation to support. Over the years, she has been asking Zhang Moumou and Miao Moumou to pay Zhang's living expenses, education expenses, meals and other expenses, but Zhang Moumou and Miao Moumou ignored them. Therefore, Cai's mother-in-law sued the court, demanding that Zhang Moumou and Miao Moumou pay Cai's mother-in-law * * * 10 years' alimony based on the average salary of 73,866 yuan in Yixing in 2065 and 438+2007 and referring to the alimony standard in divorce cases.
The court finally held that, first of all, Cai's mother-in-law claimed that she had formed a creditor-debtor relationship with Zhang Moumou and Miao Moumou because of taking care of and raising Zhang, and the evidence was insufficient. In daily life, it is not excluded that grandparents (step-grandparents) help to look after their grandchildren (step-grandchildren) based on blood relationship and affection. In particular, Zhang Abo and Cai have been supporting Zhang for nearly 20 years, but Cai never advocated paying relevant maintenance fees before the lawsuit in this case. After Zhang Abo's death, Cai filed a lawsuit on the grounds of negotiorum gestio in this case, proving that Cai, Zhang Moumou and Miao did not constitute the original intention of negotiorum gestio when Cai and Zhang Abo took care of Zhang. To take a step back, even if the constitutive requirements of the debt of negotiorum gestio advocated by Cai's mother-in-law are established, Cai's mother-in-law has taken care of Zhang for nearly 20 years before filing a lawsuit, and her request has passed the statute of limitations, so the court does not support Cai's claim.
In a case tried by the court in Danfeng County, Shaanxi Province, grandparents took the responsibility of taking care of their children because their children went out to work. The old man claimed that he and his son and daughter-in-law "agreed to pay 2,000 yuan a month during the custody period", but from 2065,438+06 to 2020, the old couple gave everything and took good care of it, but the son and daughter-in-law refused to pay for the custody of their granddaughter, which was "chilling". The old couple then sued the court and asked their son and daughter-in-law to "pay the agreed salary of 96,000 yuan".
After hearing the case, the court held that there was no written or oral labor contract between the old couple and their son and daughter-in-law, and there was no de facto labor contract relationship between the two parties. The "cost of bringing grandchildren" advocated by the elderly actually refers to the cost that the elderly spend on their children, rather than the labor wages advocated by the elderly. Now, because the daughter-in-law has paid all the child support that should be borne, the court does not support the lawsuit of the old couple according to law.
Old people have no legal obligation to support their grandchildren.
People's courts have clearly stated in many cases that the elderly have no legal obligation to support their grandchildren.
In Haojiang District, Shantou City, a girl born in September 2007 1 was raised by her mother Yao after her parents divorced. After Yao died of illness, she lived alone with her grandmother Li Yi, who took care of her daily life. Most of the living expenses and education expenses are paid by Xiao Chen's father Chen Mou, and Li Yi also bears part of the expenses. When Xiao Chen was admitted to a private junior high school, Li Yi paid nearly 10,000 yuan for her tuition and fees, and asked Chen Mou to pay, but Chen Mou refused to bear it. There was an argument between the two sides, so Li Yi took Chen Mou to court.
After hearing the case, the Haojiang District Court of Shantou City held that according to the second paragraph of Article 1043 of the Civil Code, this case was a marriage and family dispute. Parents have the obligation to raise and educate their children. When the defendant Chen Mou has the ability to raise children, the plaintiff has no legal obligation to raise children for a long time instead of the defendant, so he has the right to ask the defendant to pay the necessary living expenses and education expenses paid for raising children on his behalf. The court ruled that the defendant should pay the child's monthly living expenses to the plaintiff according to 800 yuan, and severely criticized and educated the defendant's behavior.
A large number of cases show that the elderly help to take care of their grandchildren based on family affection and selfless love. There is a reason why some old people ask for more "grandchildren's expenses".
"Of course, China is a country that values family ethics. Most elderly people are silently paying for their children, but this does not mean that paying is necessary or that we can take it for granted." The judge in charge of the trial of Pingxiang Intermediate People's Court in Jiangxi wrote in the judgment that an old man advocated "taking care of his children", "Maybe the proposal of' service fee' is a drunkard's sake, and the old man's contribution is not taken for granted. As the younger generation, we should thank the old man for his help, respect his feelings and understand his hard work. Without this love and care, the elderly will become a one-way effort to take care of their children, and psychological imbalance may eventually overflow and seek legal assistance.
Parental support is indispensable.
You Zhilong said that grandparents often need certain material expenses, pay certain fees and spend a lot of time and energy when taking care of their grandchildren, so they have the right to claim compensation from their children who have not fulfilled their guardianship duties.
He explained that grandparents have no clear obligation to support their minor grandchildren whose parents are alive and capable of raising them. It is conditional for grandparents to fulfill their obligation to support their minor grandchildren. In this regard, Article 1074 of the Civil Code clearly stipulates that "grandparents who can afford it have the obligation to support their minor grandchildren whose parents are dead or whose parents are unable to support them."
At the same time, Article 22 of the Law on the Protection of Minors stipulates that if the parents or other guardians of minors cannot fully perform their guardianship duties within a certain period of time due to reasons such as going out to work, they should entrust a person with full capacity for civil conduct who has the ability to support them; Without justifiable reasons, no one may entrust others to take care of it.
"In the process of raising a child, the close care of parents plays an irreplaceable role in the healthy growth of the child, especially when the child is still young, it needs the close education and example of parents, which is more conducive to the cultivation of family ties and the healthy growth of the child. "