The promulgation and implementation of the Adoption Law of People's Republic of China (PRC) (hereinafter referred to as the Adoption Law) indicates that China's adoption system tends to be perfect, which is of great significance for adjusting the adoption relationship between the parties according to law, safeguarding the legitimate rights and interests of the parties, and consolidating and developing socialist family relations. However, after more than two years of implementation, the provisions of China's adoption law on some issues can be further improved. This article intends to talk about this.

I. About the adoption of adults

China's adoption law does not clearly stipulate whether adults can be adopted. Although Article 4 stipulates that "minors under the age of 14 can be adopted", since Article 7 adopts children of the same generation within three generations for childless citizens over 35 years old and overseas Chinese adopt children of the same generation within three generations, Article 14 only stipulates that "the adoptee is dissatisfied with 14 years old" and there is no upper limit. So some people think that such people can adopt/kloc-teenagers over 0/4 years old, even adults of any age.

There are also many people who think that this is a misunderstanding caused by the imprecise legal expression. According to Article 2 of the Adoption Law, "Adoption should be conducive to the upbringing and growth of adopted minors", they believe that the original intention of China's adoption legislation should be understood, and the object of adoption can only be minors.

The author believes that this is indeed an omission in legislation. From this perspective, the second understanding is correct. In principle, the adoptee should be a minor, and adults should not be adopted.

First of all, from the purpose of establishing the adoption system. Adoption system is an indispensable part of marriage and family system, a necessary supplement to natural consanguinity, and restricted by superstructure such as production relations. Any type of society has an adoption system that adapts to its economic and political systems. In feudal society, the heir adoption system came into being in response to the needs of patriarchal clan system. In capitalist society, the purpose of adoption is mainly for the interests and needs of the adopter at first, so it is not surprising that adults are allowed to adopt. As a socialist country, adoption should be beneficial to the adopted minors and must not violate social morality. In other words, the purpose of establishing the adoption system in China is mainly to enable orphans, abandoned children who have lost their parents, and children whose parents have special difficulties and are unable to raise them to regain family warmth and grow up healthily through adoption by others. Although childless adoptive parents can also get spiritual comfort by raising other people's children and get their support and help when their adopted children are old and weak, whether adoption can be established depends first on whether it is beneficial to minors, not mainly on the needs of adoptive parents.

Second, from the actual effect of adopting adults in the past. Before the promulgation and implementation of the Adoption Law, some areas allowed adults to be adopted as adopted sons with no evil intentions, in order to make some elderly, infirm and childless people take care of them in their daily lives. However, because there is no direct blood relationship between the adopter and the adoptee, if an adult is adopted, on the one hand, it is difficult to eliminate the intimate affection that has been formed between the adoptee and his biological parents; On the other hand, as both adopters and adoptees are adults, their living habits and hobbies are basically stereotyped. After living together, it is generally difficult to adjust the relationship. A slight contradiction will easily lead to cracks and affect the stability of the adoption relationship. There are even some bad guys, or use the adoption relationship to squander the money of the elderly and walk away; Or "sexual adoption", insulting and damaging the adoptee.

Third, some theoretical problems brought by adopting adults. Article 22 of China's Adoption Law clearly stipulates: "From the date of the establishment of the adoption relationship, the provisions of the law on the relationship between parents and children shall apply between adoptive parents and adopted children; The rights and obligations between the adopted child and the close relatives of the adoptive parents shall be governed by the provisions of the Law on the Relationship between Children and Parents. " "The rights and obligations between adopted children, biological parents and close relatives are destroyed by the establishment of adoption relationship." In other words, China is different from some countries that implement the principle of incomplete adoption. We practice the principle of complete adoption. After the adoption relationship is established, all the rights and obligations between the adopted child and the biological parents and their close relatives can be transferred to the adoptive parents and their close relatives. After the adoptee comes of age, the rights and obligations between him and his biological parents and their close relatives will of course be destroyed by the establishment of the adoption relationship. It is unfair to parents who have brought them up and fulfilled their obligation of raising and educating them, but they can't enjoy the support that adult children can do. If the adopted adult children are allowed to maintain dual rights and obligations, it is not only contrary to the legal provisions, but also suspected of maintaining the feudal legacy, which is not conducive to the stability of the adoption relationship.

In addition, adults may have spouses and children. After being adopted, does the adoption effect involve the spouse and children? If so, how to clarify their rights and obligations in theory?

Therefore, in principle, the object of adoption can only be minors, even if the stepfather or stepmother adopts stepchildren within three generations, it should be minors in principle. For some frail elderly people who have no children to take care of them, the problem of providing for the aged can generally be solved by signing a legacy support agreement, and adoption is not needed.

However, we should also realize that real life is complicated. Some frail old people, childless, can't sign a legacy support agreement with others, and want to adopt a young man over 18 as their adopted children to take care of their daily life; Some stepparents who have no biological children hope to support the elderly by adopting adult stepchildren; Some overseas Chinese and Chinese who have settled abroad are willing to adopt children who have grown up in our country but are regarded as minors (or adults allowed in the country of settlement) in order to inherit their careers and property and celebrate their children. Why not? Therefore, the author believes that proper adoption of adults is the need of social life and is beneficial to the country and the people. But this is a special adoption after all, and in order to avoid the above disadvantages, its conditions should be stricter. As far as the adoptee is concerned, he should be under 30 years old, unmarried, with both parents dead and no other close relatives who need him to fulfill his obligations.

Second, on the issue of intergenerational adoption.

In real life, some people ask the adoptee to be the adopted grandson because they are too different from the adopter in age or generation, forming a relationship between parents and children with different titles. This is called leapfrog adoption abroad and intergenerational adoption in China. For this kind of adoption, the Supreme People's Court clearly confirmed in Article 29 of the Opinions on Several Issues Concerning the Implementation of Civil Policies and Laws issued by 1984: "If the adoption of others as grandchildren does form the relationship between adoptive grandparents and adopted grandchildren, it should be recognized. When resolving adoption disputes or related rights disputes, it can be handled reasonably in accordance with the provisions of the Marriage Law on the relationship between adoptive parents and adopted children. " Over the past decade or so, people's courts at all levels have properly settled many such disputes, which has played a good role in safeguarding the legitimate rights and interests of the parties and stabilizing social order. However, China's adoption law has not made explicit provisions on this.

The author believes that allowing adopters to adopt grandchildren directly is not only the need of real life, but also an effective system proved by trial practice, and the adoption law can completely absorb it as an integral part of China's adoption system. In order to avoid confusion with adopted children, that is, adopted grandchildren in the true sense, and avoid confusion of rights and obligations, the following three aspects should be clearly stipulated in legislation:

First, the adoption of a grandson must meet all the conditions for adopting a child, but it must also be adopted directly by itself, not on behalf of the child.

Second, this kind of adopted grandchildren is different from the adopter's other biological children and adopted children in terms of appellation, but their legal status is the same, which directly produces the right and obligation relationship between parents and children.

Third, such adopted children should be the same as adopted children. Once the adoption relationship is established, the rights and obligations between them and their biological parents will be eliminated.

Three, about the formal requirements of adoption.

Article 15 of China's Adoption Law stipulates: "Anyone who adopts an abandoned baby or a child whose biological parents cannot be found or an orphan raised by a social welfare institution shall register with the civil affairs department." "In addition to the provisions of the preceding paragraph, the adopter and the adopter shall conclude a written agreement in accordance with the adoption conditions stipulated in this Law, and may handle the notarization of adoption; If the adopter or adopter requests notarization of adoption, it shall be notarized. " Article 20 also stipulates: "Foreigners who adopt children in People's Republic of China (PRC) ... shall conclude a written agreement with the adopter, register with the civil affairs department in person, and go to the designated notary office for notarization of adoption. The adoption relationship shall be established from the date of notarization. " That is to say, in our country, the procedure of establishing adoption relationship must be attached: the adopter and the adoptee have concluded a written agreement; Individuals are registered in the civil affairs department; In addition to the three formal requirements of adoption notarization, we can choose one or two for general adoption in China according to different situations. In other words, there are three different procedures for the establishment of domestic adoption relationship.

First, administrative registration procedures. In other words, abandoned babies, abandoned children and orphans raised by social welfare institutions who can't find their biological parents must be registered in the civil affairs department, which is a necessary formal requirement for adopting such minors.

Second, the notarization procedure. Because article 15 of the Adoption Law only stipulates that it can be notarized, and does not emphasize the need for notarization, let alone the necessity of notarization. Therefore, it should be understood that notarization is a legal form of adoption, and the notarized adoption relationship has legal effect, but notarization is not a necessary formal requirement of adoption. If the adopter or both or one of the adopters requests notarization, it shall be notarized. Neither party requires notarization, and notarization is unnecessary. Whether the adoption is notarized or not shall be decided by the parties themselves.

Third, the form of written agreement. Article 15 of the Adoption Law clearly stipulates that adoption shall be concluded between the adopter and the adopter who meets the adoption conditions stipulated in this Law. "That is to say, a written agreement is a necessary form of all adoption relationships. Whether it is foreign adoption or domestic adoption; Whether adopting special children such as abandoned babies and orphans or adopting minors with biological parents, both parties must sign a written agreement in line with the adoption law.

Adoption Law stipulates that adoption is an important legal act to establish identity relationship. In order to safeguard the legitimate rights and interests of adopters, adopters, especially adoptees, certain procedures are emphasized and state supervision and intervention are strengthened. On the other hand, considering China's vast territory and the large jurisdiction of administrative organs and notary offices, it goes without saying that only the parties are required to sign a written agreement according to law to facilitate adoption. However, the defects of this provision are also obvious.

First of all, the Adoption Law still does not determine the competent authority to approve the adoption relationship. Since the founding of New China for more than 40 years, there has been no special examination and approval authority for the establishment and dissolution of adoption in China, which leads to some confusion in the confirmation of adoption relationship and affects the clarity of rights and obligations of the parties. This time, in the legislative process of the Adoption Law, it was suggested that the notary office should be responsible for this task, but quite a few scholars opposed it, thinking that the notary office was only a proof.