[5] 【Lead Counsel: Wang Tengfeng】I. Case Review

[6] Plaintiff Li XX (male) and defendant Wu XX (female) met in May 1997, began cohabiting after dating, and gave birth to a non-marital child at Shenzhen People's Hospital on September 28, 1999. After over two years of relationship, due to significant personality differences making cohabitation impossible, after multiple negotiations, they voluntarily signed an "Agreement" on June 1, 2000. The agreement stipulated termination of the relationship, non-interference in each other's work and life; plaintiff would have full custody of the child; plaintiff would pay defendant a one-time living expense of RMB 500,000, and purchase a 20-year insurance policy for defendant with an annual premium of RMB 27,000 to secure her future livelihood. However, at noon on June 15, 2000, defendant took the child from plaintiff under the pretext of visiting a friend, promising to return by 4:00 PM. When plaintiff contacted defendant near 4:00 PM, defendant's phone was turned off, and she has been unreachable since. Plaintiff sued defendant in Shenzhen Luohu District People's Court, applying for property preservation against defendant, and requesting the court to rule according to law.

(1) Dissolve the cohabitation relationship between the plaintiff and the defendant.

(2) Order that the non-marital child Li XX be solely raised by the plaintiff.

II. Judgment

The Luohu District Court's first-instance judgment is as follows [(2000) Shenluo Fa Min Er Zi No. 324]:

"The court holds that the plaintiff and the defendant, having cohabited without marriage registration, violated relevant legal provisions, and their cohabitation relationship should be dissolved. The agreement reached by both parties regarding the upbringing of the non-marital child and the defendant's future livelihood complies with relevant legal provisions and is hereby confirmed by the court. Accordingly, in accordance with Articles 7 and 19 of the Marriage Law of the People's Republic of China, the judgment is as follows:

1. Dissolve the illegal cohabitation relationship between the plaintiff Li XX and the defendant Wu XX.

2. The non-marital child Li XX shall be raised by the plaintiff Li XX. The defendant Wu XX has the right to visit the child at any time and may take the child back to Sichuan once a year during holidays."

3. Plaintiff Li XX shall pay defendant Wu XX a lump sum of RMB 500,000 for living expenses (this amount has been fully paid). The commercial insurance premiums for the policy originally taken out by plaintiff Li XX for defendant Wu XX, with a coverage amount of RMB 600,000, shall continue to be paid by Li XX (once a year, amounting to over RMB 27,000).

The litigation preservation fee of RMB 3,030 and the acceptance fee of RMB 50 in this case shall be borne by plaintiff Li XX."

III. Case Analysis

This case is not a typical cohabitation relationship. The parties were not married but had a child. It is legally permissible for them to voluntarily sign the "Agreement" through equal negotiation to dissolve the illegal cohabitation relationship. It should be said that the "Agreement" is lawful, reasonable, and humane, well-considered and very compassionate, and was affirmed by the first-instance court's judgment. The plaintiff has long been engaged in business in Shenzhen, with a stable source of income and a good living environment, which is conducive to the child's growth. Therefore, custody of the child is awarded to the plaintiff. Since the defendant has no job and no marketable skills, the plaintiff has provided substantial financial support to the defendant and allows the defendant to visit the child at any time. During annual holidays, the defendant may also take the child back to the defendant's hometown, enabling the child to enjoy the love of both parents and ensuring the child's physical and mental health. However, just half a month after signing the agreement, the defendant breached it by taking the child away and not returning, which not only harmed the plaintiff but also was detrimental to the child's healthy development. The key to the defendant returning the child and accepting the judgment in this case lies in the timely and forceful measures taken by Director Attorney Wang Tengfeng after accepting the entrustment of plaintiff Li XX: On June 16, 2000, the very day of accepting the entrustment, Director Attorney Wang Tengfeng immediately applied to the court for property preservation of the funds in two accounts where the defendant had received RMB 500,000 from the plaintiff. After accepting the case, the court sealed these two accounts, finding only RMB 190,000 remaining, as the defendant had withdrawn over RMB 300,000. Director Attorney Wang Tengfeng promptly submitted a second "Property Preservation Application" to the court, requesting the sealing of the defendant's property in her hometown in Sichuan. A series of strong legal measures prompted the defendant to calmly reconsider the severe consequences of her breach of contract. After weighing the pros and cons, she chose the wise course of returning the child and accepting the judgment, resulting in an outcome that was satisfactory for both the plaintiff, the defendant, and the child.

(Wu Xuan compiled and commented)

Zhiming Office

June 29, 2000