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Does China Have Alimony?: A Study of China's Current Post-Divorce Financial Relief System

  • Author(s): Lee, Jason J.
  • et al.
Abstract

Under China’s current Marriage Law amended and enacted in 2001, its post–divorce financial relief system comprises three disparate component parts.  The principal part and the one analogous to the American concept of “alimony” or “spousal support” is the “post–divorce financial assistance system,” as authorized under Article 42.  The other two parts, “economic compensation at divorce” and “divorce damage claims system,” as authorized under Article 40 and Article 46, respectively, complement the principal part.  After a brief historical overview of China’s alimony legislations, this Article offers a doctrinal analysis of the two more straightforward components as embodied by Article 40 and Article 46.  Then it delves into an in-depth textual criticism of Article 42, and its concomitant 1984 SPC’s Judicial Opinions and Article 27 of the 2001 SPC’s Judicial Interpretations, the three constituents of the entire corpus of China’s “alimony laws.”  Through the lenses of California’s divorce laws, focusing on the current judicial interpretations and practices, the author candidly critiques the Chinese sui generis body of “alimony laws.”  The author arrives at such significant findings: (1) The statutes and judicial interpretations are too vague to be of much practical guidance when judges decide issues such as the eligibility prerequisites for invoking the law and the criteria for rendering financial assistance; (2) The law is fraught with loopholes; (3) The law is obsolete and does not suit the current socioeconomic reality of China.  The author observes that such vague, defective and obsolete laws leave too many key issues to the judges’ vagaries.  The author makes concrete recommendations and suggests specific remedies to close the loopholes and fill the gaps in the current post–divorce financial assistance system.  The author advances the theory that the absence of an elaborate, systematic set of alimony laws and procedural rules is the direct result of the Party-state’s overemphasis on mediation and a diehard feature of the rule of man, to the detriment of the rule of law.  The author describes this trait as the corollary of the triumph of Confucianism over Legalism as manifested in contemporary China.  The author marks out the stumbling blocks to reforming China’s current alimony laws and cautions that the eventual reification of the proposed rules and legal remedies will hinge upon the outcome of the rivalry between the synthesists’ views of rule of law and the thin theories of rule of law.

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