The law walks with you

Author: Lu Zhenqiu (Editor) / Country:
Publisher:
Publish Date: 2002-01-01
Features: 4. Can He Recover Child Support? Liu and Xiao got married in 1983. After that, Xiao had an affair with another man, Chen, and gave birth to a boy in September 1984. Two years later, Liu and Xiao divorced, and after, the child was raised by Xiao, with Liu paying 80 yuan in child support per month. In April 1999, the child needed a blood transfusion due to illness, and Xiao asked Chen, the biological father of the child, to donate blood. Liu learned about this and, after investigating, claimed the child was not his biological son and would no longer provide support, demanding Chen pay 16 years of child support totaling 15,360 yuan. Chen refused. Seeing that negotiations failed, Liu sued Chen, arguing that since the child was not his biological son, he should not be obligated to pay child support, and demanded the return of 15,360 yuan in child support. Different opinions exist on how to handle this case: One view holds that although Liu is not the child's biological father, he and Xiao jointly raised the child before the divorce and continued to pay support after the divorce, meaning Liu has objectively fulfilled the child support obligation. Therefore, the relationship between Liu and the child can be considered as that of adoptive father and son, and he should not return the child support. Another view supports Liu's claim. The reasoning is as follows: First, Liu has no obligation to support the child. Since Chen is the child's biological father, the child and Liu are not biological father and son. As for whether the child and Liu can be considered as adoptive father and son, the answer is negative. During the marriage between Liu and Xiao, Xiao had an affair with Chen and gave birth to a child, concealing the truth from Liu, who raised a non-biological child under false pretenses. According to the relevant provisions of the General Principles of Civil Law (Article 55 and Article 58), this clearly constitutes an invalid civil act, which has no legal binding force from the beginning of the act. Second, how should the relationship between the child and Liu be viewed? In fact, it's quite simple. Considering the entire case, the relationship between Liu and the child can be seen as a substitute parenting relationship. Although this relationship was formed under Liu's ignorance, objectively, Liu has fulfilled the substitute parenting obligation. Now that Liu is aware of the truth, his request to no longer act as a substitute parent and to return the advanced child support is reasonable, fair, and lawful. In conclusion, we agree with the latter view. 5. Fulfilling Responsibility for the Child Despite handling many criminal cases, the file on the desk left me with a heavy heart. This was a case where both father and son were defendants in a theft. The father, Zhang A, married and had a son, Zhang B, in another city. After the divorce, Zhang A returned to Shanghai with his underage son. To survive, the father and son set up a small stall selling snacks, and life was relatively stable. However, soon after, Zhang A got involved with a group of card players and became addicted to gambling. The son, still underage, couldn't manage the stall alone—either he got burned by oil or the snacks burned. The little money they earned was quickly spent on gambling by Zhang A. Frustrated, the son abandoned the stall and started stealing with a group of friends. When Zhang A learned about this, he not only failed to discipline his son but also bought stolen goods at low prices for his own consumption and even helped sell them. Eventually, the case was exposed, and both father and son were arrested. In the detention center, I met Zhang B. Seeing his innocent face, my heart grew heavy. After Zhang B finished describing his criminal activities, he choked up and said, "I hate myself very much, but I also hate my father. I really wish I could have a complete family, a normal living environment, and people who care about me." As the meeting neared its end, Zhang B suddenly asked me, bewildered, "What happens if I get released?" After some guidance, Zhang B seemed to come to his senses. The court, considering Zhang B's criminal circumstances and attitude of repentance, gave him a lighter sentence. Although the case was resolved, I couldn't help but hear Zhang B's words echoing in my mind: "What happens next?" "Yes, his mother has long been gone, and his father is in prison due to the case. What kind of environment will Zhang B face?" I thought. Later, when I met Zhang A, I shared the child's feelings of loss with him and pointed out seriously: "Don't you think your son turned out this way because of your influence?" 8. Selling a Car Without Title Transfer, the Original Owner Still Bears Civil Liability Li and Lü purchased a Dongfeng brand large truck together four years ago, with Lü's name on the registration certificate. In February 1997, Li and Lü disbanded their partnership, and the truck became Li's property. At the time of the dissolution, they agreed that Li would issue a certificate stating, "The ××× Dongfeng brand large truck, from February 1997 onwards, belongs to Li, and has nothing to do with Lü." However, after Li acquired the truck, no title transfer was completed, and the registration certificate still listed Lü's name. On September 20 last year, Li was driving the truck on a section of National Highway 105 when he made an error in operation, lost control of the steering, and the vehicle slid sideways, injuring a cyclist named Zhang. After the accident, the traffic police division determined that Li, as the driver, was at fault and should bear full responsibility. At this point, Li argued that the truck was Lü's property, so Lü should also be held responsible. Li then sued in court. The court ruled that: According to the accident responsibility determination, the Dongfeng large truck injured Zhang, and Li is the actual owner of the truck, so he should bear full responsibility for the accident and compensate for medical expenses totaling 36,585 yuan. As for the defendant Lü, who transferred the truck to Li, failing to complete the title transfer, and the registration certificate still listed Lü's name, the agreement between Li and Lü was against the law and therefore invalid. Therefore, Lü should bear joint and several liability for compensation. After receiving the court's judgment, Lü felt wronged, believing that since he was no longer the owner, he shouldn't have to bear joint and several liability. In fact, the Motor Vehicle Management Measures (Article 15) and the Interim Provisions on the Management of Automobile Trading Markets, formulated by the State Administration for Industry and Commerce, both impose special requirements on the sale of motor vehicles, stating that both parties must promptly complete the title transfer with the local vehicle management authority. Otherwise, the sale should be considered invalid. If an accident occurs, the accident responsible party and the vehicle owner bear joint and several liability for losses. In this case, Lü violated the above provisions and was ordered by the court to bear compensation liability. 9. Collecting Counterfeit Money is Illegal One evening, a coin collector named Xiao Liu came to his lawyer uncle, Lao Liu, asking for legal advice. It turned out that Xiao Liu had been collecting coins for many years, not only collecting common coin types but also rare ancient coins. In the past two years, he had also collected some counterfeit money as a collectible. However, recently, he heard that a coin collector in the south was busted by the police for collecting 5,000 yuan in counterfeit Renminbi, and later the procuratorial organ prosecuted him for the crime of holding and using counterfeit money, resulting in a six-month prison sentence and a fine of 10,000 yuan. Xiao Liu couldn't understand why collecting counterfeit money, without taking it out for use or causing harm to society, was illegal. He asked his uncle, "Collecting counterfeit money hasn't been used, hasn't harmed society—how can it be illegal?" Lao Liu replied, "Oh, it seems you don't know this crime yet!" Then he explained: The crime of holding and using counterfeit money is a new offense stipulated in the revised Criminal Law. It reflects the government's increased efforts to crack down on crimes against national currency management. There are three elements to constitute this crime: First, the person must be aware in their mind that the counterfeit money they hold or use is forged; Second, the person must objectively hold or use counterfeit money; Third, the amount of counterfeit money held or used must be substantial. The coin collector in the south already met these three elements, so prosecuting him for the crime of holding and using counterfeit money is in accordance with the law. At this point, Xiao Liu asked, "Does that mean even collecting is illegal?" Lao Liu replied, "Collecting is a form of holding." "Is there a specific standard for what constitutes a substantial amount?" "Yes." Then Lao Liu opened a book and said, "Look, the Supreme People's Court has set a standard in its judicial interpretation, clearly distinguishing between 'substantial amount,' 'huge amount,' and 'extraordinarily huge amount.' The coin collector in the south, holding 5,000 yuan in counterfeit money, falls into the lighter category of 'substantial amount' under the Criminal Law. According to Article 172 of the Criminal Law, sentencing him to a six-month prison term and a fine of 10,000 yuan is legally justified." 56. If Both Borrower and Lender Commit Fraud, Is the Guarantor Still Legally Responsible? Question: Company B borrowed 4 million yuan from Company A. Because the loan had to be arranged through a bank, a guarantor was required. Our company is a client of Company B, so Company B asked us to act as the guarantor of the loan, stating that the purpose of the loan was to purchase raw materials. When signing the guarantee contract, we believed it and signed and stamped the contract. However, Company B used the loan to pay off old debts at the bank. After the loan period (one year) expired, Company A did not receive repayment. We only learned from Company A that Company B had used the money to pay off old debts. Later, Company A prepared to sue both our company and Company B. Please advise, what should our company, as the guarantor, do? Answer: I believe that your company, as the guarantor of the loan, should not bear this guarantee liability or civil liability. The reasoning is as follows: First, the borrower and lender jointly committed fraud against the guarantor. Objectively, your company, as the guarantor, was deceived by the borrower (Company B), who concealed the true purpose of the loan. Company A and Company B jointly engaged in the practice of refinancing old debts, failing to disclose the true situation to the guarantor. The loan contract and guarantee contract both stated a false purpose for the loan. The intention was to shift the risk of the loan to the guarantor, effectively infringing on the legitimate rights and interests of the guarantor. Second, subjectively, the borrower and lender entered into the contract with the intention of refinancing old debts to cover the gap of unrecoverable funds. Their ultimate goal was to make the guarantor bear this repayment responsibility. From the bank's perspective, if Company B was not involved, it would be difficult to achieve this goal; yet the bank agreed to this practice to meet its loan targets, but as a good-faith guarantor, it would be hard to uncover the truth. This was a joint act of fraud by Company A and Company B against the guarantor. Third, legally, the General Principles of Civil Law of our country emphasize that civil activities should adhere to the principles of voluntariness, fairness, and good faith; the legitimate rights and interests of citizens and legal persons should not be infringed upon; civil acts based on fraud are invalid; and civil acts that use legal forms to conceal illegal purposes are also invalid. The Guarantee Law of our country stipulates that if the parties to a contract collude to deceive the guarantor into providing a guarantee, the guarantor shall not bear civil liability; the borrower must use the loan funds in accordance with the loan contract and may not divert them for other purposes. Based on the above points, it can be confirmed that as the guarantor, your company does not bear liability for this loan contract.