Dad killed mom, who will take care of me as a minor?
Compiled from: The Paper, Tencent News
Case review
Recently, a case of a wife being killed in Hangzhou has drawn intense attention. On July 6, 2020, Mr. Xu reported to the police that his wife, Ms. Lai, had mysteriously disappeared in the early hours of the previous day. After receiving the report, the police searched through all the surveillance footage in the residential area but found no trace of the missing woman.
In response, there was widespread discussion online, with some netizens even suggesting that Ms. Lai had entered a parallel universe. However, the final police investigation results shocked everyone.
On the evening of July 23, the Hangzhou police issued a notice, announcing that the missing woman had been killed, and her husband was a major suspect and had been placed under criminal coercive measures.
It is reported that Xu and Ms. Lai were in a typical remarried family. Ms. Lai had a daughter from her previous marriage, who lived with her ex-husband after the divorce and is now married. Xu also had a son from his previous marriage, who lived with his ex-wife after the divorce and is now 29 years old. Xu and Ms. Lai had a daughter together after remarrying in 2008, who is now 11 years old.
According to Xu's confession, he was dissatisfied with his wife due to family life conflicts. In the early hours of July 5, while his wife was asleep, he killed her, dismembered the body, and scattered the remains. As the case is being resolved, the perpetrator brought to justice, and the deceased's soul laid to rest, the issue of how to care for the young daughter from Xu and Ms. Lai's remarried family has also touched the hearts of many netizens.
Relevant legal provisions
[1] General Principles of the Civil Law
Article 27
[2] Parents are the guardians of minor children. If the parents of a minor have died or lack the capacity to be guardians, the following persons with guardianship capacity shall act as guardians in the following order:
[3] (1) Grandparents and maternal grandparents;
[4] (2) Elder siblings;
[5] (3) Other individuals or organizations willing to act as guardians, subject to the consent of the residents' committee, villagers' committee, or civil affairs department in the place of the minor's domicile.
Article 30
[6] Persons legally qualified to be guardians may agree among themselves to designate a guardian. The designation of a guardian by agreement shall respect the true wishes of the ward.
Article 31
If there is a dispute over the determination of a guardian, the residents' committee, villagers' committee, or civil affairs department of the ward's domicile shall designate a guardian. If the relevant parties are dissatisfied with the designation, they may apply to the people's court for the designation of a guardian; the relevant parties may also directly apply to the people's court for the designation of a guardian.
[1] The author's perspective
1. The father, Xu Moumou, is still the legal guardian of the younger daughter. The younger daughter is 11 years old and a minor. According to Article 27 of the General Principles of the Civil Law, Xu Moumou, as the father, is the legal guardian of the younger daughter. Although Xu Moumou has been subjected to criminal coercive measures and has lost his personal freedom, what he has lost is the ability to act as a guardian, not the status of a guardian. Therefore, Xu Moumou remains the legal guardian of the younger daughter.
2. The guardianship of the younger daughter needs to be designated by Xu Moumou to another person. According to Article 27 of the General Principles of the Civil Law, the younger daughter's paternal grandparents, maternal grandparents, half-sister from the same mother, and half-brother from the same father are all persons with guardianship qualifications. However, since the father, Xu Moumou, is still alive, the order of guardianship for these individuals can only come after the father. Given the objective situation that Xu Moumou has been restricted in his personal freedom, he has the right to designate the guardianship of the younger daughter to another person. If Xu Moumou does not designate the guardianship to another person, the court may also revoke his guardian status.
3. According to Article 30 of the General Principles of the Civil Law, currently, persons with guardianship qualifications may negotiate to determine a temporary guardian to take care of the younger daughter, but the true wishes of the younger daughter must be respected.
4. According to Article 36 of the General Principles of the Civil Law, if the court ultimately finds Xu Moumou guilty, his actions clearly constitute "seriously harming the physical and mental health of the ward," which is sufficient to meet the conditions for "revocation of guardian status." The court may, upon application by other persons with guardianship qualifications, as well as organizations such as the residents' committee, villagers' committee, school, medical institution, women's federation, disabled persons' federation, minor protection organization, lawfully established elderly organization, and civil affairs department, revoke Xu Moumou's guardian status in accordance with the law, arrange necessary temporary guardianship measures, and designate a guardian in accordance with the principle of best interests of the ward.
The author believes that the guardian's duty is to act on behalf of the ward in civil legal acts and to protect the ward's personal rights, property rights, and other lawful rights and interests. In this case, regardless of who ultimately serves as the guardian, they should lawfully protect the lawful rights and interests of the 11-year-old daughter caught in this tragic storm.
