养老保障视域下《民法典》赡养义务体系化之论

The Systemization of Filial Obligations in Chinese Civil Code from the Perspective of Old-Age Security

《民法典》使赡养义务体系化,但相关解释论的缺失影响了赡养义务功能的实现。为此,需要根植法律体系、立足社会现实,构建赡养义务体系解释论。以生存保障功能为起点,经由实践演进、理论沿革与条文修改,总则性赡养义务条款发展出全面性内涵。将赡养理解为全面性赡养,是《民法典》赡养义务实质体系化的基础。以合理性与可行性为考量,需要界分法律性赡养与道德性赡养,且子女、孙子女、外孙子女的强制性赡养义务应被限制为物质性赡养。而在以被赡养人为中心的理念下,孙子女、外孙子女赡养义务虽属次生补位性质的义务,但其履行基准不宜与子女赡养义务有所区分。有关丧偶儿媳、女婿赡养义务的条款属于权利取得条款,具有激励性、倡导性作用,其伦理基础是继承人与被继承人之间形成的家庭性、道德性关系,因而其要件不宜限定为物质性要素,而应综合考虑物质性赡养、精神性赡养、照料、保护等要素。

China now is progressing from the stage of moderately aging society to severely aging one.Against this background,issues related to elderly care becomes increasingly prominent.Filial obligations is the core system of elderly care.Thus it is necessary to focus on the practical issues of elderly care and to establish a systematic interpretation theory within the Chinese Civil Code.The general provisions of filial obligations have evolved from the function of ensuring survival to a comprehensive connotation through practice,theoretical innovation,and revision of legal texts.Under the codification,the general provisions of filial obligations do not clearly specify the“elements-effectiveness”formula,but those provisions serve to define the nature of the filial obligations and to supervise filial obligations in various sections.The understanding of“filial obligations”as filial obligations in all aspects is the basis for the substantive systematization of the filial obligations in the Chinese Civil Code.When the general provisions of the filial obligations are generally understood as being comprehensive,they form comprehensive rules in judicial practice,while the“elements-effectiveness”formula of the provisions of support in the Marriage and Family Law and the Inheritance Law is defined as substantive by legal texts and judicial interpretations.How to reconcile the conflict between the general provisions of the filial obligations and the specific provisions of the filial obligations in different sections has become an important issue in interpreting the application of the filial obligations.Considering reasonableness and feasibility,a distinction is made between filial obligations prescribed by laws and filial responsibilities regulated by the morality.In this way,the mandatory nature of the obligations to take care of children,grandchildren and great-grandchildren should be limited to financial support.The obligations to take care of grandchildren and great-grandchildren is regarded as a secondary,complementary and less demanding form of material support.Under the distinction between obligations and responsibilities,the comprehensive content should permeate the Chinese Civil Law.Focusing on the concept of dependents,the obligations to take care of grandchildren and great-grandchildren,although secondary and complementary,should not be distinguished from the obligations to take care of children.Although the Marriage and Family Law does not explicitly prescribe the obligations of widowed daughters-in-law or sons-in-law to take care of their parents-in-law,the Inheritance Law stipulates the primary obligation of widowed daughters-in-law or sons-in-law to take care of their parents-in-law as first-line legal heirs.Due to the lack of clarity regarding the concept of“filial obligations”and the standards for“primary filial obligations”,it is necessary to further examine whether the nature of filial obligations in the Inheritance Law is the same as that in the Marriage and Family Law.In this context,the provisions on the obligations to take care of widowed daughters-in-law and sons-in-law fall into the category of provisions on the acquisition of rights,which exerts an incentive and advocacy role.Its ethical basis is the family and moral relationship between the heir and the deceased.Therefore,its criteria should not be limited to material support,but they should comprehensively consider elements including material support,financial support,emotional support,care and protection.