Several Issues on Guardian's Infringement upon the Rights and Interests of Minors

 2018-08-12  6


  • Document NumberNo. 24 [2014] of the Supreme People's Court
  • Area of Law Civil Law Criminal Law
  • Level of Authority Documents of Judicial Interpretation Nature
  • Date issued12-18-2014
  • Effective Date01-01-2015
  • Issuing Authority Supreme People's Court Supreme People's Procuratorate Ministry of Public Security Ministry of Civil Affairs
  • Status Effective

Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Civil Affairs on Legally Handling Several Issues on Guardian's Infringement upon the Rights and Interests of Minors
(No. 24 [2014] of the Supreme People's Court)
The higher people's courts, people's procuratorates, public security departments (bureaus), and civil affairs departments (bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court and the Military Procuratorate of the People's Liberation Army; the Security Section of the General Political Department of the People's Liberation Army; the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region; and the People's Procuratorate, the Public Security Bureau, and the Civil Affairs Bureau of Xinjiang Production and Construction Corps:
The Opinions on Legally Handling Several Issues on Guardian's Infringement upon the Rights and Interests of Minors, which will take effect on January 1, 2015, are hereby issued to you for your conscientious implementation. Please report the information on the implementation and the problems encountered respectively to the Supreme People's Court (“SPC”), the Supreme People's Procuratorate (“SPP”), the Ministry of Public Security (“MPS”), and the Ministry of Civil Affairs (“MCA”) in a timely manner.
Supreme People's Court
Supreme People's Procuratorate
Ministry of Public Security
Ministry of Civil Affairs
December 18, 2014
Opinions on Legally Handling Several Issues on Guardian's Infringement upon the Rights and Interests of Minors
To effectively protect the legal rights and interests of minors, strengthen the administrative and judicial protection for minors, and ensure proper care to minors, these Opinions are hereby formulated for the work relevant to the handling of guardian's act of infringing upon the rights and interests of minors (hereinafter referred to as “guardian's infringement act”) according to the General Principles of the Civil Law, the Civil Procedure Law, the Law on the Protection of Minors, and other laws and regulations.
I. General provisions
1. For the purpose of these Opinions, guardian's infringement act means the act of parents or other guardians (hereinafter referred to as “guardians”) sexually abusing, selling, abandoning, abusing, and violently hurting minors; instigating and utilizing minors to implement illegal and criminal acts; coercing or luring minors into begging or using them in begging; and seriously harming the physical and mental health of minors by failing to perform guardian's responsibilities.
2. In handling guardian's infringement act, the principle of the best interests of minors shall be followed; the physical and psychological characteristics, and personal dignity of minors shall be fully considered; and special and preferential protection shall be given to minors.
3. Any organization or individual shall be entitled to dissuade, deter or report the guardian's infringement act.
The public security organs shall appropriately take measures to deter the guardian's infringement acts found in work and reported by entities and individuals in a timely manner, and take minors away from their guardians under emergency circumstances.
The civil affairs departments shall establish the minors relief and protection institutions (including the salvation management stations and the centers for the assistance and protection of minors), assume responsibilities of temporary guardianship for minors entering the institutions due to guardian's infringement, and file applications to the people's courts for the revocation of guardian's qualification when necessary.
The people's courts shall accept the applications for the ruling of personal safety protection and the cases on the revocation of guardian's qualification, and render judgments.
The people's procuratorates shall exercise legal supervision over the work of the public security organs and the people's courts in handling guardian's infringement act according to law.
Where the people's courts, the people's procuratorates, and the public security organs have established special institutions for handling cases of minors, priority shall be given to the special institutions for handling cases of guardian's infringement.
4. The people's courts, the people's procuratorates, the public security organs, and the civil affairs departments shall fully perform their duties, strengthen guidance and training, and improve the capacity and level of the protection of minors; strengthen communication and cooperation, establish an information sharing mechanism, and realize effective connection between administrative and judicial protection of minors.
5. The people's courts, the people's procuratorates, the public security organs, and the civil affairs departments shall strengthen contact and cooperation with the National Working Committee on Children and Women under the State Council, the education department, the health department, the Communist Youth League, the women's federations, the China National Committee for the Wellbeing of the Youth Child, the villagers' (residents') committees of the residences of minors, and other institutions; actively guide, encourage and support the legal services institutions, social work and services agencies, public welfare and charitable organizations, volunteers, and other social forces; and jointly and effectively complete the protection of minors subject to guardian's infringement.
II. Report and disposal
6. Schools, hospitals, villagers' (residents') committees, social work and services agencies, and other entities and their employees shall report the cases to the public security organs or resort to tip-off, when finding that minors are subject to guardian's infringement.
Other entities and their employees and individuals, when finding that minors are subject to guardian's infringement, shall also report the cases to the public security organs or resort to tip-off.
7. The public security organs, upon receipt of the police reports and tip-off involving the act of the guardian's infringement, shall immediately dispatch police force, stop the infringement acts which are taking place, and promptly conduct investigation. Where the conditions for filing criminal cases are satisfied, cases shall be filed immediately.
8. The public security organs, during the process of handling cases of guardian's infringement, shall collect fixed evidences in a timely and comprehensive manner under the legal procedures, to ensure the quality of case handling.
The physical and psychological characteristics of minors shall be considered in inquiring about the minors. Gentle ways shall be adopted to prevent causing further damage.
Other guardians of minors, if any, shall be notified to be present. Where other guardians are unable to be notified or be present, other adult relatives of minors, the representatives of their schools, the villagers' (residents') committees, the minors protection organizations, and the professional social workers may be notified to be present.
9. Where the guardian's infringement acts constitute violation of the act of public security administration, the public security organs shall impose public security administration punishment according to law. However, where public security administration punishment is not imposed under extremely lenient circumstances, the guardians shall be criticized and educated, which shall be notified to the local villagers' (residents') committees. Where a crime is constituted, the guardians shall be investigated for criminal liabilities.
10. Where guardians suspected of suffering from mental disorders have committed acts of harming the safety of minors or jeopardizing the safety of minors, their close relatives, entities, and local public security organs shall immediately adopt measures to stop them and send them to medical institutions for mental disorder diagnosis.
11. When finding that minors are bodily harmed seriously, subject to serious threats to personal safety, or under the hazardous situation of being unattended during the process of dispatching police force, the public security organs shall take them away from the guardians committing the guardian's infringement acts, send them to nearby guardians, relatives, villagers' (residents') committees, or minors relief and protection institutions, and undergo the written handover formalities. Where minors have ability to express, their opinions on the escort site shall be solicited.
The entities and persons responsible for receiving minors (hereinafter referred to as the “temporary caregivers”) shall offer minors temporary emergency shelters and short-term life care, and protect the personal safety of minors, but shall not infringe upon the legal rights and interests of minors.
The public security organs shall notify the temporary caregivers in writing of being entitled to apply for ruling on personal safety protection and revocation of guardians' qualification with the people's courts.
12. For minors who are subject to serious bodily harm and need medical care, the public security organs shall send them to hospitals for treatment in advance, and inform other relatives with guardian's qualification of taking care of them, or informing the local minors relief and protection institutions of carrying out follow-up relief work.
Their guardians shall assume the costs of medical treatment in accordance with law. Other relatives, the minors relief and protection institutions, and other institutions which pay medical rescue expenses in advance shall be entitled to claim compensation from the guardians.
13. The public security organs which escort minors subject to guardian's infringement to the minors relief and protection institutions shall provide explanations on the investigation and punishment of the cases within five working days.
14. Where the guardian's infringement acts may constitute the crime of abuse, the public security organs shall inform minors or their close relatives of being entitled to complain or complain on their behalf, and notify the local people's procuratorates at the same level.
Where minors and their close relatives fail to complain, the people's procuratorates shall initiate prosecution.
III. Ruling on temporary placement and personal safety protection
15. The minors relief and protection institutions shall accept minors subject to guardian's infringement as escorted by the public security organs and fulfill the responsibilities of temporary guardianship.
The minors relief and protection institutions shall perform temporary guardianship responsibilities generally for no more than one year.
16. The minors relief and protection institutions may provide temporary care, psychological counseling, emotional comfort and other services to minors, by means of family fosterage, voluntary sponsorship, foster care by institutions, or placement at boarding schools designated by the government on a commissioned basis.
Where a minor needs to be transferred to another school or enter into a school in another place to accept compulsory education, the administrative department for education shall provide guarantee therefor.
17. Where other guardians or close relatives of minors request to take care of the minors, the minors relief and protection institutions may hand over minors thereto and terminate the temporary guardianship, after the public security organs or the villagers' (residents') committees confirm the identities thereof.
Where other close relatives or friends request to take care of the minors, the minors relief and protection institutions may hand over minors thereto and terminate the temporary guardianship, with consent by the entities or the villagers' (residents') committees of the minors' parents.
The minors relief and protection institutions handing over minors to their relatives or friends for temporary care shall go through the written handover formalities, and inform the temporary caregivers in writing of being entitled to apply for the ruling on personal safety protection and the revocation of guardian's qualification with the people's courts.
18. The minors relief and protection institutions may organize social work and services agencies and other social forces to provide the guardians with guardianship guidance, psychological counseling, and other education counseling, and conduct investigation and evaluation on the family status of minors, guardianship status, repentance of guardians, physical and psychological health status of minors, willingness of minors, and other information. Guardians' acceptance of education counseling and follow-up performance shall be deemed as important contents of the investigation and evaluation reports.
Relevant entities and individuals shall cooperate with the investigation and evaluation.
19. The minors relief and protection institutions shall consult with the public security organs, the villagers' (residents') committees, the schools, relatives of minors, and others, solicit opinions of minors with ability of expression, and form consultation conclusions, in light of the description of the case investigation and handling information, the investigation and evaluation reports, guardians' acceptance of education counseling, and other information.
Where the dangerous conditions as set forth in paragraph 1, Article 11 of these Opinions are deemed as having been eliminated after the consultation and the guardians are able to appropriately fulfill the responsibilities of guardianship, the minors relief and protection institutions shall notify the guardians to take minors back in a timely manner. The guardians shall take minors back within three days and go through the written handover formalities. Before conclusions are made upon consultations, the minors relief and protection institutions shall not hand over minors to their guardians.
Where the guardian's infringement acts are deemed to have fallen into the circumstances as set forth in Article 35 of these Opinions upon consultations, the minors relief and protection institutions shall apply for revoking the guardians' qualification with the people's courts.
20. Where the minors relief and protection institutions notify the guardians to take minors back, they shall notify the schools, the public security stations in the prefecture, and the villagers' (residents') committee of the relevant information and the obligation of keeping the contents notified confidential.
21. Where the guardians take minors back, the minors relief and protection institutions shall instruct the villagers' (residents') committees to pay follow-up visits for the guardianship situation of the guardians and offer education counseling.
The minors relief and protection institutions may also organize social work and services agencies and other social forces to carry out the work as set forth in the preceding paragraph.
22. The minors relief and protection institutions or other temporary caregivers, may, as needed, apply for ruling on personal safety protection with the people's courts at the residences of minors, the residences of guardians, or the places where the infringement acts are committed.
The minors relief and protection institutions or other temporary caregivers may also apply for ruling on personal safety protection with the people's courts in the litigations.
23. The people's courts shall render rulings in accordance with the provisions of Articles 100,101,102 of the Civil Procedure Law, after accepting the applications for personal safety protection. Where it is found through investigations that there is danger of infringing upon the personal safety of minors, rulings on personal safety protection shall be rendered.
The people's courts shall render rulings within 48 hours after accepting the applications for ruling on personal safety protection before the litigations. The people's courts shall also render rulings within 48 hours after accepting the applications for rulings on personal safety protection during litigations, in emergency. The rulings on personal safety protection shall be implemented immediately.
24. A ruling on personal safety protection may include one or more of the following measures:
(1) A respondent shall be prohibited from hurting or threatening minors and their temporary caregivers by violence.
(2) A respondent shall be prohibited from tailing after, harassing, or contacting minors and their temporary caregivers.
(3) A respondent shall be ordered to move out of the residence of minors.
(4) Other measures to protect the personal safety of minors and their temporary caregivers.
25. Where a respondent refuses to fulfill the ruling on personal safety protection, endangers the personal safety of the minors and their temporary caregivers, or disrupts the work order of the minors relief and protection institutions, the minors, the minors relief and protection institutions, or other temporary caregivers shall be entitled to report the cases to the public security organs which shall handle the cases according to law.
Where a respondent refuses to fulfill the ruling on personal safety protection in other ways, the minor, the minors relief and protection institutions, or other temporary caregivers shall be entitled to report the cases to the people's courts. The people's courts shall impose fines and detention in light of the seriousness of the cases, in accordance with the provisions of Article 111, Article 115, and Article 116 of the Civil Procedure Law. Where a crime is constituted, the respondent shall be held criminally responsible.
26. A party concerned who is dissatisfied with a ruling on personal safety protection may apply for reconsideration once. The implementation of the ruling shall not be suspended during the process of reconsideration.
IV. Litigation of applying for the revocation of the guardian's qualification
27. The following entities and persons (hereinafter referred to as the “relevant entities and persons”) shall be entitled to apply for revocation of the guardian's qualification with the people's courts:
(1) other guardians, grandparents, brothers, sisters, and other close relatives and friends of the minors;
(2) the villagers' (residents') committees at the residence of minors, and the entities of the parents of minors;
(3) the civil affairs departments and the minors relief and protection institutions established thereby; and
(4) the Communist Youth League, the women's federations, the China National Committee for the Wellbeing of the Youth Child, schools, and other groups and entities.
Applications for the revocation of the guardian's qualification shall generally be submitted by the entities and persons responsible for temporarily taking care of the minors as set forth in the preceding paragraph, or other entities and persons as set forth in the preceding paragraph.
28. The relevant entities and persons shall submit relevant evidences when applying for the revocation of the guardian's qualification with the people's courts.
The investigation and evaluation reports including the basic conditions of minors, the problems of guardianship, guardians' repentance, guardians' acceptance of education counseling, minors' physical and mental health condition, minors' willingness, and other contents, if any, shall be submitted concurrently.
29. Where the relevant entities and persons apply for producing evidentiary materials relevant to cases with the public security organs and the people's procuratorates, the public security organs and the people's procuratorates shall provide the basic materials or written explanations on the facts of the cases.
30. For cases that public prosecutions are initiated against the guardians for the guardian's infringement acts, the people's procuratorates shall notify in writing the minors and their temporary caregivers of being entitled to apply for the revocation of the guardian's qualification.
Where the guardian's infringement acts are consistent with the circumstances as set forth in Article 35 of these Opinions, while the relevant entities and persons do not institute litigations, the people's procuratorates shall suggest the local civil affairs departments or the minors relief and protection institutions in writing to apply for the revocation of the guardian's qualification with the people's courts.
31. Cases of application for the revocation of the guardian's qualification shall be governed by the grassroots people's courts at the residence of the minors, the residence of the guardians, or the place where the infringement is committed.
The people's courts accepting cases of applying for the revocation of the guardian's qualification shall not charge litigation cost.
V. Hearing of cases on the revocation of the guardian's qualification and post-sentence placement
32. The people's courts hearing cases of the revocation of the guardian's qualification shall hear and close the cases within one month under the special procedures as set forth in the Civil Procedure Law. Extension, if necessary, under special circumstances, shall be subject to approval of the president of the court.
33. The people's courts shall comprehensively review the investigation and evaluation reports and other evidence materials, and listen to the opinions of the respondents, the minors with ability of expression, the villagers' (residents') committees, the schools, neighbors, etc.
34. The people's courts may hire appropriate public figures to offer social protection to minors, introduce a psychological counseling and evaluation mechanism, organize professional social workers, child psychology experts and other professionals to be involved in litigations, and provide minors and the respondents with psychological counseling and evaluation services, if required by the cases.
35. Where a respondent has fallen into one of the following circumstances, the people's courts may render a judgment that the guardian's qualification should be revoked:
(1) A respondent who seriously damages the physical and mental health of the minors through sexual abuse, sale, abandonment, abuse, and hurting by violence.
(2) A respondent who leaves minors into an unattended situation causing the minors to face danger of death or serious injury, and fails to make rectification after being educated.
(3) A respondent who refuses to perform his duties as a guardian for up to six months or more, which makes minors become destitute, homeless, and indigent.
(4) A respondent who is unable to appropriately fulfill duties as a guardian due to pernicious habits such as taking drugs, gambling, and long-term alcoholism or who is unable to fulfill the duties as a guardian for serving a sentence and other reasons refuses to entrust the duties as a guardian to others, in part or in whole, which make minors be in distress or danger.
(5) A respondent who coerces or lures minors into begging or using them in begging and refuses to make rectification after being criticized and educated for over three times by the public security organs, the minors relief and protection institutions, and other departments, which seriously affects the normal life and learning of minors.
(6) A respondent who instigates and uses minors to commit crimes, where the circumstances are execrable.
(7) There are other acts seriously infringing upon the legal rights and interests of minors.
36. Where the guardian's qualification is held to be revoked and the minors have other guardians, other guardians shall assume the responsibilities of guardianship. Other guardians shall take measures to prevent the minors from being subject to infringement continuously.
Where there are no other guardians, the people's courts shall designate guardians from the persons and entities as set forth in paragraph 2 and paragraph 4 of Article 16 of the General Principles of the Civil Law, under the principle of the best interests of minors. Where a person is designated as a guardian, his willingness, conduct, physical condition, economic conditions, living and emotional connection with minors, willingness of minors with ability of expression, and other factors shall be comprehensively considered.
Where there is no suitable person or other entity to serve as the guardian, the people's courts shall designate a civil affairs department to serve as the guardian. A subordinate child welfare institution shall accept and raise minors.
37. Where the guardian's qualification is held not to be revoked, the people's courts may visit minors and their families, if necessary, and issue judicial suggestions to the local civil affairs departments, the public security stations in the prefecture, the villagers' (residents') committees, the Communist Youth League, the women's federations, the schools of minors, the entities of the guardians, etc., to strengthen the protection of the minors and supervision and guidance for the guardians.
38. The infringer whose guardian's qualification is revoked may apply for restoration of guardian's qualification in writing with the people's courts within a period of three months to one year from the date of revocation and shall submit relevant evidences.
The people's courts shall inform the infringer, other guardians, and the designated guardians, of the contents of the preceding paragraph in writing.
39. The people's courts shall hear cases on the restoration of the guardian's qualification under the procedures for trial of cases of changing guardian relationship.
The people's courts shall solicit opinions of the minors' incumbent guardians and minors with ability of expression, entrust the investigation of the applicants' willingness, repentance performance, competence as guardians, physical and psychological status, working and living conditions, and other situation to the minors relief and protection institutions or other minors protection organizations at the residences of the applicants, and form investigation and evaluation reports.
Where an applicant is serving a sentence or receiving community correction, the people's courts shall solicit the opinions of the penalty enforcement authority or the community correction agency.
40. The people's court when finding out that the applicant has repentance performance indeed and is suitable to serve as a guardian upon hearing may render a judgment to restore the guardian's qualification of the applicant. The guardian's qualification of the former designated guardian shall be terminated.
An applicant falling into one of the following circumstances shall generally not to be judged to restore his guardian's qualification:
(1) An applicant sexually abuses or sells minors.
(2) An applicant abuses and abandons minors for more than six months, repeatedly abandons minors, and has caused grave consequences of serious injury or severer.
(3) An applicant is sentenced to five-year imprisonment or severer punishment due to the guardian's infringement act.
41. Within six months after the conclusion of a litigation concerning the revocation of the guardian's qualification, the minors and the incumbent guardians may apply for a ruling on personal safety protection with the people's courts.
42. Parents whose guardian's qualification is revoked shall continue to assume the costs of raising minors and various expenses arising from the guardian's infringement acts. Where the relevant entities and persons initiate litigations, the people's courts shall be supportive.
43. The civil affairs departments shall, in accordance with the relevant provisions, include the qualified minors subject to guardian's infringement into the scope of social assistance and related insurance coverage.
44. Where the civil affairs departments serve as guardians, the child welfare institutions responsible for raising may give minors up for adoption.
Giving minors up for adoption shall be conducted one year after the people's courts render judgments to revoke the guardian's qualification. Where an infringer falls into the circumstance as set forth in paragraph 2, Article 40 of these Opinions, giving minors up for adoption shall not be subject to the restriction of one year later.