Wednesday, July 16, 2014

Talking about China, Ageing, Families and Law

An interesting moment for me at the 2014 Internatonal Elder Law and Policy Conference at John Marshall Law School in early July occurred when I asked several speakers from China to comment on recent reports suggesting "filial support" or "family support"  is attracting interest of legislators, courts and older persons in China.  For example, I shared with them the text, in English and Chinese, from Chinese Law Prof Blog on "Controversy Over Elder Law in China," that included news reports on consideration of laws in Shandong province in northeastern coastal China.  If passed the laws would appear to require adult children to maintain "their parents' standard of living at a level at least equal to their own."

My question sparked a vigorous debate among the Chinese participants and quite a few chuckles from the audience as we tried to keep up with the translators. Over the course of the next two days Professor Lihong Tang from the law school at Fuzhou University in Fujian Province, Professor Chey-Nan Hsieh from Chinese Culture University in Taiwan, and Professor Xianri Zhou of South China Normal University School of Law in Shanghai attempted to help me understand. Here is my understanding of several points made during our discussion, a conversation we have agreed to continue via email:

  • The population of individuals aged 65 and older in China is already 119 million.  From my separate research I know that the older population is projected to continue to grow at a rate of 3.2 percent per year.  The percentage of the population deemed older is also increasing, and according to some reports, it is projected to hit 1/6th of the total population by 2018 and possible as high as 1/5th of the total population by 2035.  In other words, as Professor Tang explained, at some point in the relatively near future the total number of elderly in China could exceed the total population -- young, middle-aged and old -- of the U.S. 
  • With these population statistics in mind, they advised caution in making any judgments or  predictions about trends based on a single case decision or from news stories reporting about any single family controversy involving support. And of course, this point is valuable to remember in all legal research, but the importance (and challenge) of having an adequate empirical base in China may be even more significant.
  • Court actions to mandate younger family members to care for their elders are not a major trend in China.  Rather, they emphasized that most families voluntarily provide the majority of care and financial assistance needed by their elders.
  • There are efforts to create a stronger public system of income support where necessary to meet basic needs.
  • Recent news reports (that received high profile attention in the U.S., such as this 2013 report on CNN) about a Chinese law that would mandate that adult children also "visit" their elderly parents were focusing on a "proposed" law, not one that was enacted. 

In addition to my on-going discussion with the law professors at the conference, Yihan Wang, Senior Judge in the People's Court of the Jing'an District in Shanghai, gave a fascinating presentation on "The Path of Judicial Protection of the Rights and Interests of the Elderly in China."  He has served for many years as a judge, and is currently in charge of "civil trials, commercial trials, finance trials and elderly trials" in his judicial district in Shanghai.  He explained that an "elderly judicial tribunal" was established in 1994, for civil cases in which one or both parties is aged 60 or more.  His court recognizes that older adults may have unique needs for legal assistance in disputes, including a potential need for free legal representation or guidance. 

After the presentation of his paper via a translator, Judge Yihan Wang provided me with a copy of the English language translation of his paper.  Thus, I was able to both hear and read about his examples of cases that have occurred in the Shanghai court: 

"For one example, in the disputes of sale contracts of real estate, some adult children sell their parents' apartment and violate their parents' residency by stealing their parents' identification -- or make them sign the contract with the older person is unconscious.  In [some] cases, the judge will judge the contract as valid to protect the third-parties' legal rights according to the Property Law. However, in cases involving the older [person], judges will consider more about the buyer's duty of care and the residency rights of the senior.  They will be more cautious and much more strict to confirm the effectiveness of the contract.  Mainly to protect the older people's residency right." 

In contrast to my on-going discussion with the three Chinese law professors who emphasized the voluntary nature of assistance provided by families to their elders, Judge Yihan Wang's paper suggested that some level of litigation or claims review does occur over the issue of "family support," including what he described as efforts to "remind the adult children of their duty."  His paper reported that "statistics show that 56% of the claiming alimony cases are closed by conciliation.  In most of these cases, after the trials, children go to visit their parents automatically and the family relationship is improved."  He emphasized that for older adults, "conciliation not only protects their legal rights and interests, but also maintains their family relationship and brings their children home."

Judge Yihan Wang's paper, in translation, concludes with these words: "China's 5,000-year-old culture emphasizes respect for the elderly, pension, help age virtues, which [are] absorbed by Chinese law and policy concerning the elderly, reflected in the Chinese judicial practice and become the judicial characteristics on protection of the rights and interests of the elderly in China."

Thus, I can see that my efforts to understand the role of "filial support" or "family support" laws in China will continue, especially as it appears that there may be regional differences in how any such laws are used or needed.  In most countries I have studied, voluntary assistance, both practical and financial, flowing from adult children to elderly parents, is the norm.  What I find interesting is the question of to what extent is "voluntary" filial assistance also encouraged, mandated, or subject to enforcement by laws. Is the 5,000 year tradition of filial piety under sufficient pressure in the 21st century that law is necessary? 

http://lawprofessors.typepad.com/elder_law/2014/07/talking-about-china-ageing-families-and-law.html

Ethical Issues, Housing, Legal Practice/Practice Management, Social Security | Permalink

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