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Chapter Law Content

Title: Civil Code CH
Category: Ministry of Justice(法務部)
Part Ⅳ Family
Chapter I General Provisions
Article 967
The lineal relative by blood is the relative by blood of a person from whom that person is descended or he who is descended from that person.
The collateral relative by blood is the nonlineal relative of a person who is descended from the same common ancestor as that person himself is.
Article 968
The degree of relationship by blood between a person and his lineal relative by blood shall be determined by counting the number of generations upwards or downwards from himself [as the case may be], one generation being taken as one degree. As between the person and his collateral relative, the degree of relationship shall be determined by the total number of generations counting upwards from himself to the common lineal ancestor and then from such common ancestor downwards to the relative by blood with whom the degree of relationship is to be determined.
Article 969
The relative by marriage of a person includes the spouse of his relative by blood, the relative by blood of his spouse and the person who is married to the relative by blood of his spouse.
Article 970
The line and degree of relationship between relatives by marriage shall be determined as follows:
(1) In regard to the spouse of a relative by blood, by the line and degree of relationship of the person who is married to the said spouse;
(2) In regard to a relative by blood of a spouse, by the line and the degree of relationship between such relative by blood and the said spouse;
(3) In regard to the person who is married to the relative by blood of his spouse, by the line and the degree of relationship between such person and the said spouse.
Article 971
Divorce terminates the relationship between relatives by marriage. The same rule is applicable to the annulment of marriage.
Chapter II Marriage
Section 1 Betrothal
Article 972
An agreement to marry shall be made by the male and the female parties in their own [con]cord.
Article 973
A male who has not reached his seventeenth year of age and a female her fifteenth [ma]y not make an agreement to marry.
Article 974
Where a minor makes an agreement to marry, he shall obtain the consent of his statutory agent in advance.
Article 975
No demand shall be made to force the performance of an agreement to marry.
Article 976
Where one of the betrothed parties is found in one of the following conditions, the other party may dissolve the agreement to marry:
(1) Where, having made an agreement to marry, the party made another agreement to marry or concluded a marriage with another person;
(2) Where the party willfully fails to observe the appointed date of marriage;
(3) Where the party's life has been uncertain for over a year;
(4) Where the party gets a serious and incurable disease;
(5) Where, having made the agreement to marry, the party had consensual sexual intercourse with another person ;
(6) Where, having made the agreement to marry, the party was sentenced to imprisonment;
(7) Where other grave reasons exist.
In the case where a party intends to dissolve an agreement to marry according to the provisions of the preceding paragraph, and if the circumstances do not allow such party to declare such intention to the other party, it is not necessary for such party to do so, and such party is no longer bound by the agreement since the conditions described in the preceding paragraph have occurred.
Article 977
Where an agreement to marry has been dissolved in accordance with the provisions of the preceding article, the innocent party may claim compensation from the other party who is at fault for damage thus sustained.
In the case provided in the preceding paragraph, the injured party may still claim an equitable compensation in money for a non-pecuniary loss.
The right to claim in the preceding paragraph shall not be assigned to others or be passed to heirs, unless it has been acknowledged by a contract or unless an action has been commenced.
Article 978
One party to an agreement to marry, who breaks it without any of the grounds provided in Article 976, shall be liable to compensate the other party for any damage thus sustained.
Article 979
In the case provided in the preceding article, the injured party may still claim an equitable compensation in money for a non-pecuniary loss, provide that he is not at fault.
The claim in the preceding paragraph shall not be assigned to others or be passed to heirs, unless it has been acknowledged by a contract or unless an action has been commenced.
Article 979-1
One party may claim the other party for returning gift presented for betrothal when the agreement to marry is null and void, or dissolved, or annulled.
Article 979-2
The claim pursuant to the provisions in Article 977 through Article 979-1 shall be extinguished if it is not exercised within two years.
Section 2 Conclusion of Marriage
Article 980
A man who has not completed his eighteenth year of age and a woman her sixteenth may not conclude a marriage.
Article 981
A minor must have the consent of his statutory agent for concluding a marriage.
Article 982
A marriage shall be effected in writing, which requires the signatures of at least two witnesses, and by the registration at the Household Administration Bureau.
Article 983
A person may not marry any of the following relatives:
(1) A lineal relative by blood or by marriage;
(2) A collateral relative by blood is within the sixth degree of relationship. The limit to marriage shall not be applicable to persons of lineal relative within the fourth degree of relationship and collateral relative within the sixth degree of relationship by adoption.
(3) A collateral relative by marriage is within the fifth degree of relationship of a different rank.
The marriage prohibitions between relatives by marriage provided in the preceding paragraph shall continue to apply even after the dissolution of the marriage which has created the relationship.
The limit to marriage with the lineal relative by blood or by marriage set forth in the first paragraph hereof shall be applicable to persons of lineal relative by adoption after ending of the adoption relationship.
Article 984
A guardian may not marry his ward during the continuance of guardianship, unless consent of the ward's parents has been obtained.
Article 985
A person who has a spouse may not contract another marriage.
A person shall not marry with two or more persons simultaneously.
Article 986
(Repealed)
Article 987
(Repealed)
Article 988
A marriage is void if any one of the following conditions are met:
(1) Where it does not conform to the formalities provided by Article 982,
(2) Where it violates the marriage prohibition as provided in Article 983, or
(3) Where it violates the marriage prohibition as provided in Article 985. Except where bigamous parties get married in good faith and without negligence by relying on the dissolution of a prior marriage resulting from an agreement or an irrevocable judgment.
Article 988-1
In the circumstance pursuant to the third paragraph of the preceding provision, the previous marriage is dissolved on the date that the later marriage is formed.
The effect that the previous marriage is deemed as dissolved applies mutatis mutandis to the effect of divorce, unless otherwise provided for by law. However the remainder of the property is disposed of as distributed or agreed. No claim shall arise otherwise.
Where the previous marriage is deemed as dissolved pursuant to the first paragraph, the right to claim for distribution of the remainder [of the property] shall be extinguished if it is not exercised within two years from the time when the claimant has known that there is such a remainder [of the property], or if five years has elapsed from the revocation of divorce agreement or the reverse of the divorce judgment being finalized.
Where the previous marriage is deemed as dissolved pursuant to the first paragraph, the non-fault spouse in the previous marriage has the right to compensation against the other spouse.
Under the condition provided in the preceding paragraph, the spouse in the previous marriage may claim equitable compensation for a non-pecuniary loss.
The claim provided in the preceding paragraph shall not be assigned to others or passed to heirs, except if it has been acknowledged by a contract or an action has been commenced.
Article 989
Where a marriage is concluded contrary to the provision of Article 980, the party concerned or his statutory agent may apply to the court for its annulment; but such application may not be made, where the party concerned has attained the age specified in the said article or where the woman has become pregnant.
Article 990
Where a marriage is concluded contrary to the provision of Article 981, the statutory agent may apply to the court for its annulment; but such application may not be made where six months have elapsed after the discovery of the fact or one year has elapsed after the conclusion of the marriage, or where the woman has become pregnant.
Article 991
Where a marriage is concluded contrary to the provision of Article 984, the ward or his nearest relative may apply to the court for its annulment; but such application may not be made where one year has elapsed after the conclusion of the marriage.
Article 992
(Repealed)
Article 993
(Repealed)
Article 994
(Repealed)
Article 995
Where one spouse is sexually impotent at the time of marriage and such incapacity is incurable, the other party may apply to the court for the annulment of the marriage; but the applicant may not make such application after three years from the time of awareness of such incurability.
Article 996
Where, at the time of marriage, one spouse is in a condition of absence of discernment or mental disorder, such spouse may within six months after he is restored to normal condition apply to the court for the annulment of such marriage.
Article 997
A person who has concluded a marriage by fraud or by duress may apply to the court for its annulment within six months after awareness of the fraud or after the cessation of the duress.
Article 998
The effect of an annulment of marriage is not retroactive.
Article 999
A party to a marriage who has sustained damage through nullity or annulment of the marriage may claim compensation from the other party. This, however, does not apply where the other party is not at fault.
In the case mentioned in the preceding paragraph, the injured party who is not at fault may also claim an equitable compensation in money though there is no pecuniary loss.
The claim mentioned in the preceding paragraph is not transferable and does not pass to heirs, unless it has been acknowledged by contract or has involved litigation.
Article 999-1
The provisions in Article 1057 and Article 1058 shall be applicable mutatis mutandis to invalid marriage.
The provisions in Article 1055, Article 1055-1, Article 1055-2, Article 1057 and Article 1058 shall be applicable mutatis mutandis to annulled marriage.
Section 3 Efficacy of Marriage
Article 1000
The husband and the wife should keep his or her own surname. Unless one party shall prefix to his or her surname that of the spouse in writing at the household administration authority.
The party who prefixed to his or her surname that of the spouse shall return to his or her own surname. But only one time for change during the continuance of the marriage relationship.
Article 1001
The husband and the wife are under mutual obligation to cohabit, unless for a good cause they cannot live together.
Article 1002
The domicile of the husband and the wife shall be agreed by mutual agreement; if it has not been agreed or can not be agreed, it may depend on the court by application.
Before the ruling of the court, it will be presumed the common household domicile as the domicile of the husband and the wife.
Article 1003
In daily household matters, the husband and the wife act as agents for each other.
Where one of the parties abuses the aforesaid right of agency, the other party may restrict it, but such restriction cannot be set up against any bona fide third party.
Article 1003-1
The payment for living expenses of the household will be shared by the husband and the wife according to each party's economical ability, household labor or other conditions unless otherwise provided for by law or mutual agreement.
The husband and the wife will be jointly liable for debts incurred by the expenses of the preceding paragraph.
Section 4 Matrimonial Property Regimes
Subsection 1 GENERAL PROVISIONS
Article 1004
The husband and the wife may, before or after getting married, adopt by contract one of the contractual regimes provided by this Code as their matrimonial property regime.
Article 1005
Where the husband and the wife have not contracted the holding of matrimonial property, unless otherwise provided by this Code, the statutory regime shall be applied.
Article 1006
(Repealed)
Article 1007
The conclusion, modification or termination of a contract for the holding of matrimonial property must be done in writing.
Article 1008
The conclusion, modification or termination of a contract for the holding of matrimonial property may not be a valid defense against any third party unless it has been registered.
Registration provided in the preceding paragraph will not affect any other registration of the property right according to the other law.
Registration provided in the first paragraph shall be regulated by a particular law.
Article 1008-1
The provisions in the preceding two articles shall be applicable mutatis mutandis to other agreements pertaining to matrimonial property.
Article 1009
(Repealed)
Article 1010
Either the husband or the wife is in any of the following circumstances, the court may, at the instance of the other party, order the application of the separation of property regime:
(1) Where liable for the living expenses of the household but failed to provide such;
(2) Where either the husband or the wife is in a state of insolvent;
(3) Where according to the law, the disposition of property requires the consent of the other party, but such consent is refused without a good cause;
(4) Where one party who is entitled to manage has obviously managed the common property improperly, and failed to make any improvement thereon by request of the other;
(5) Where one party improperly reduced his own property acquired in marriage and this may endanger the other's right to claim for distribution of the remainder [of the property];
(6) Where any other gross event has occurred.
Where the husband and the wife are both in a state of insolvent, or where they could hardly maintained their common living, and have not lived together for more than six months, provisions in the preceding paragraph will be applicable to both of them.
Article 1011
(Repealed)
Article 1012
During the continuance of the marriage, the husband and the wife may, by contract, terminate their contract for the holding of property, or adopt any other contractual regime.
Article 1013
(Repealed)
Article 1014
(Repealed)
Article 1015
(Repealed)
Subsection 2 Statutory Regimes
Article 1016
(Repealed)
Article 1017
The property of either the husband or the wife shall be divided into the property acquired before marriage and the property acquired in marriage, and shall be owned respectively. If the property could not be proven to be the property acquired before marriage or in marriage, it shall be presumed as the property acquired in marriage; it the property could not be proven to be owned by the husband or the wife, it shall be presumed as owned by the husband and the wife jointly.
The remains of fruits gained from the property acquired either by the husband or the wife before marriage during the continuance of the marriage relationship shall be deemed as the property acquired in marriage.
If the husband and the wife have contracted the holding of matrimonial property, and then adopted the statutory regime, the property before the adoption shall be deemed as the property acquired before marriage.
Article 1018
The husband or the wife would manage, use, collect fruits from, and dispose his or her own property respectively.
Article 1018-1
With the exception of the living expenses of the household, the husband and the wife may contract a certain amount of money paid by one for the other's free disposition.
Article 1019
(Repealed)
Article 1020
(Repealed)
Article 1020-1
Where the husband or the wife's gratuitous act on his or her property acquired in marriage during the continuance of the marriage relationship endangers the other's right to claim for distribution of the remainder [of the property] upon the termination of the relationship over the statutory regime, the other may apply to the court for its annulment, except it was a proper gift for performing a moral obligation.
Where the husband or the wife's non-gratuitous act on his or her property acquired in marriage during the continuance of the marriage relationship endangers the other's right to claim for distribution of the remainder [of the property] upon the termination of the relationship over the statutory regime, the other may apply to the court for its annulment only if it was done with knowledge of the endangerment and the beneficiary knew this upon the receipt of the benefit as well.
Article 1020-2
The claim for annulment provided in the preceding paragraph shall be extinguished if it is not exercised within six months from the time when the husband or the wife has known the reason for annulment, or if one year has elapsed from the time when the act has been committed.
Article 1021
(Repealed)
Article 1022
The husband or the wife is under an mutual obligation to inform the other of the condition of his or her property acquired in marriage.
Article 1023
The husband or the wife is respectively liable for his or her own debts.
When the husband or the wife discharges the other's debts with his or her own property, even if it is during the continuance of the marriage relationship, he or she may claim for payback.
Article 1024
(Repealed)
Article 1025
(Repealed)
Article 1026
(Repealed)
Article 1027
(Repealed)
Article 1028
(Repealed)
Article 1029
(Repealed)
Article 1030
(Repealed)
Article 1030-1
Upon dissolution of the statutory marital property regime, the remainder of the property acquired by the husband or wife in marriage, after deducting the debts incurred during the continuance of the marriage relationship, if any, shall be equally distributed to the husband and the wife, except property listed as follows:
(1) Property acquired from succession or as a gift
(2) Solatium
The court shall adjust or waive the share of distribution provided that equal distribution referred to in the preceding paragraph is obviously unfair.
The right to claim for distribution or the reminder [of the property] referred to in the first paragraph shall be extinguished if it is not exercised within two years from the time where the claimant has known that there is such a remainder, or if five years have elapsed from the dissolution of the statutory marital property regime.
Article 1030-2
If the husband or the wife discharged his or her debts incurred before marriage with his or her property acquired in marriage, or if discharged his or her debts incurred during the continuance of the marriage relationship with his or her property acquired before marriage, unless this property has been made up, it shall be counted into the remainder of the property acquired in marriage or the debts incurred during the continuance of the marriage relationship upon the termination of the relationship over the statutory regime.
If the husband or the wife discharged his or her debts with his or her property described as the exception in the first paragraph of the preceding article, the provisions provided in the preceding paragraph shall be applied.
Article 1030-3
If the husband or the wife, in order to reduce the other's share of distribution of the remainder [of the property], disposed his or her property acquired in marriage within five years before the termination of the relationship over the statutory regime, this property shall be counted into, and deemed as the remainder of the property acquired in marriage, except the disposition was a proper gift for performing a moral obligation.
In the preceding paragraph, where one who is obligated to pay the share of distribution [of the remainder of the property] could not pay off those the other is entitled to receive, the one who is entitled to receive may claim to the third party for restituting the shortness of the share to the extent that the third party is benefited; however if the third party is not gratuitously benefited, the claim for restituting [the shortness of the share] may be made only if the third party is benefited from an obviously uneven payment.
The claim to the third party provided in the preceding paragraph shall be extinguished if it is not exercised within two years from the time when the claimant has known the infringement of distribution right [of the remainder of the property], or if it has elapsed five years from the termination of the relationship over the statutory regime.
Article 1030-4
The value of the remainder of the property by the husband or the wife acquired in marriage shall be counted at the termination of the relationship over the statutory regime; however if the relationship is terminated by a juridical decree of divorce, it shall be count at the commencement of the action.
The value of the property counted into the remainder of the property acquired in marriage referred to in the preceding article shall be counted at the time of the disposition.
Subsection 3 Contractual Regimes
Item 1 Community of Property
Article 1031
With the exception of separate property, all the property and income of the husband and the wife constitute common property to be owned by them in common.
Article 1031-1
The following constitutes the separate property:
(1) Articles which are exclusively intended for the personal use of the husband or the wife;
(2) Articles which are essential to the occupation of the husband or the wife;
(3) Gifts acquired by the husband or the wife which the donor has designated in writing to be the separate property.
The separate property provided in the preceding paragraph is governed by the provisions concerning the separation of property regime.
Article 1032
The husband and the wife manage the common property jointly except it has been agreed by the party who is entitled to manage.
The cost of management is borne out of the common property.
Article 1033
Either the husband or the wife must have the consent of the other for disposing of the common property.
The absence of such consent cannot be set up against a third party, unless he knew or had the means of knowing its absence, or unless the property in question could have, under the circumstances, been regarded as part of the common property.
Article 1034
Debts incurred by the husband or the wife before or during the continuance of the marriage relationship, should be chargeable to the common property and should be respectively liable to the extent of the separate property.
Article 1035
(Repealed)
Article 1036
(Repealed)
Article 1037
(Repealed)
Article 1038
Debts payable out of the common property, where have been paid out of the common property, no claim for compensation will arise.
Debts payable out of the common property, where have been paid out of the separate property, or debts payable out of the separate property, where have been paid out of the common property, the claim for compensation shall arise and can be made even during the continuance of the marriage relationship.
Article 1039
Upon the death of one of the husband and the wife, half the common property shall pass to the heir of the deceased and the other half shall devolve on the surviving party.
In the case of the division of property mentioned in the preceding paragraph, where some other agreement exists as to the amounts, such agreement shall be followed.
In the case provided in the first paragraph, where the surviving party is by law unable to inherit, he may not claim a greater portion of the common property than he would get in the case of divorce.
Article 1040
On the dissolution of the community of property regime, each of the husband and the wife gets back the property of contracting for the holding of matrimonial property, unless otherwise provided for by law.
The common property was caused during the continuance of the community of property regime, each of the husband and the wife acquires a half of the property, unless otherwise provided for by contract.
Article 1041
The husband and the wife may agree by contract that the common property shall consist only of labor income.
Labor income as specified in the first paragraph comprises earnings from salary, wage, shares, bonus and the other related income acquired by the husband and the wife during the continuance of marriage relationship, as well as the interests and substitute profits of the labor income.
The property could not be proven as the labor income or the other property rather than labor income, will be presumed as labor income.
The property rather than the earnings of the husband or the wife is governed by the provisions concerning the separation of property regime.
The provisions in Article 1034, Article 1038 and Article 1040 shall be applicable mutatis mutandis to the first paragraph.
Item 2 (Repealed)
Article 1042
(Repealed)
Article 1043
(Repealed)
Item 3 Separation of Property Regime
Article 1044
In the separation of property regime, the husband and the wife each retains the ownership, and each party manages, uses, collects fruits from and disposes his or her own property respectively.
Article 1045
(Repealed)
Article 1046
The liability of debts incurred by the husband or the wife in the separation of property regime shall apply the provisions in Article 1023.
Article 1047
(Repealed)
Article 1048
(Repealed)
Section 5 Divorce
Article 1049
The husband and the wife may effect a divorce by themselves with their mutual consent; but in the case of a minor, the consent of his or her statutory agent must be obtained.
Article 1050
Divorce by mutual consent shall be effected in writing which requires the signatures of at least two witnesses, and by the divorce registration at the household administration authority.
Article 1051
(Repealed)
Article 1052
Where either the husband or the wife meets one of the following conditions, the other party may petition the court for a juridical decree of divorce:
(1) Where he or she has committed bigamy;
(2) Where he or she has consensual sexual intercourse with another person;
(3) Where he or she abuses the other party as to render common living intolerable;
(4) Where he or she abuses the lineal relative of the other party, or his or her lineal relative abuses the other party as to render common living intolerable;
(5) Where the other party has deserted him or her in bad faith and such desertion still continues;
(6) Where he or she is intent on murdering the other party;
(7) Where he or she has a loathsome disease which is incurable;
(8) Where he or she has a serious mental disease which is incurable;
(9) Where it has been uncertain for over three years whether he or she is alive or dead; or
(10) Where he or she has been sentenced to more than six months imprisonment for an intentional crime.
Either the husband or the wife may petition for a juridical decree of divorce upon the occurrence of any gross event other than that set forth in the preceding paragraph that renders it difficult to maintain the marriage, except if either the husband or the wife is responsible for the event, only the other party may petition for the divorce.
Article 1052-1
When a divorce through court mediation or court settlement is sustained, the marriage relationship is dissolved; and the court is required to notify the couple’s household registration office.
Article 1053
In the cases specified in Subparagraphs 1 and 2 of the preceding article, the party who has the right to claim may not apply for a [juridical decree of] divorce, where he or she has previously consented to the event or has condoned it afterward or has known of it for over six months, or where two years have elapsed after the occurrence of the event.
Article 1054
In the cases specified in Subparagraphs 6 and 10 of Article 1052, the party who has the right to claim may not apply for a [juridical decree of] divorce, where one year has elapsed after he or she has known of the event or where five years have elapsed after the occurrence of the event.
Article 1055
After the husband and the wife effect a divorce, one party or both parties of the parents will exercise the rights or assume the duties in regard to the minor child by mutual agreement. If the mutual agreement did not or could not be done, the court may decide by the applications of the husband or the wife, the authorities concerned, the social welfare institution or any other interested person, or may decide by its authority.
If the mutual agreement is unfavorable to the child, the court may change the agreement upon the applications of the authority concerned , the social welfare institution or any other interested person or by its authority in regard to the interests of the minor child.
When the party who should but could not exercise the rights and assume the duties in regard to the minor child or did not protect the interests of the minor child, the other party of the husband and the wife, the minor child, the authorities concerned, the social welfare institution or any other interested person may apply the court to change the mutual agreement in regard to the interests of the minor child.
The provisions in the preceding three paragraphs, the court may decide the contents and methods of exercising rights and assuming duties for the interests of the minor child on the application or by its authority.
The court may decide the way and period of meeting or communication with the minor child by the application of the party who could exercise the rights and assume the duties in regard to the minor child, or by its authority. When the meeting or communication affects the interests of the minor child, the court may change it on the applications or by its authority..
Article 1055-1
When the court makes the jurisdiction in the Article of 1055, it should be decide in accordance with the best interests of the minor child, consider all the conditions and the visiting reports of the social workers, especially check the following contents:
(1) The age, gender, numbers and healthy condition of the minor child.
(2) The willing of the minor child and the need of personality development.
(3) The age, occupation, character, health condition, economical ability and the life style of the parents.
(4) The parent's willing and attitude of protecting and educating the minor child.
(5) The emotional feelings between the parents and the minor child or between the other persons living together and the minor child.
(6)Whether one parent takes actions to hinder the other of exercising rights and assuming duties of the minor child.
(7)The tradition, culture, and values of different ethnic groups.
When the court makes the preceding decision in accordance with the best interests of the minor child, besides social workers’ visiting reports or family matters investigation officers’ investigation reports, the court may also make decision based on investigation outcomes of specific matters made by police authorities, tax authorities, financial institutions, schools, and other related authorities, groups, or proper members with related professional knowledge.
Article 1055-2
In the case of the parents, both parties not suitable for exercising are the rights of parents, the Court should appoint a guardian in the best interest of the minor child in accordance with the preceding articles, and appoint the methods of guardianship, order the parents to assume the duties for raising the minor child and the methods.
Article 1056
Where one of the husband and the wife has suffered damage from a judicial decree of divorce, he or she may claim compensation from the other party at fault.
In the case provided in the preceding paragraph, the injured party may still claim an equitable compensation in money for a non-pecuniary loss, provided that he or she is not at fault.
The claim mentioned in the preceding paragraph shall not be assigned to others or be passed to heirs, unless it has been acknowledged by a contract or unless an action has been commenced.
Article 1057
Where the innocent party of the husband and the wife is reduced to difficulties in livelihood on account of a judicial decree of divorce, the other party, even if he or she is also innocent, shall pay an equitable alimony.
Article 1058
On divorce each of the husband and the wife recovers his or her own property whatever was at the time of getting married or changing the property regime, except when the separate property regime was applied. If there is any remainder [of the property], it shall be allocated according to the provisions of their property regime.
CHAPTER III Parents and Children
Article 1059
Parents should agree in writing before filing the child’s birth registration regarding if the child assumes the father’s or mother’s surname. Without such an agreement or when the agreement cannot be made, the surname should be determined by drawing lots at the Household Registration Office.
After filing the child’s birth registration and prior to the child reaching maturity, the parents may in writing change the child’s surname to either the father’s or mother’s.
Where the child reached his/her maturity, he/she may change his/her surname to either the father’s or mother’s surname.
Changing the surname pursuant to preceding two Paragraphs can be done only once.
Where one of the following conditions is met, either the parents or the child can petition in the interest of the child for a judicial declaration to change the child’s surname to either the father’s or mother’s surname:
(1) Where the parents divorce;
(2) Where one or both of parents are deceased;
(3) Where one or both of parents’ lives have been uncertain for three years; or
(4) One of parents has obviously not fulfilled his/her obligation of care-giving.
Article 1059-1
A child born out of wedlock shall assume mother’s surname. Paragraph two through four of the preceding Article should be applicable to a child born out of wedlock who is acknowledged by the biological father.
Where a child born out of wedlock who is acknowledged by the biological father meets one of the following conditions, one of the parents or the child may petition in the interest of the child for a judicial declaration to change the child’s surname to either the father’s and mother’s surname:
(1) Where one or both of parents are deceased;
(2) Where one or both of parents’ lives have been uncertain for three years;
(3) Where the child’s surname is not the same as the parent who performs the rights and duties of the child; or
(4) One of parents has obviously not fulfilled his/her e obligation of care-giving.
Article 1060
The domicile of a minor child is that of the father and mother.
Article 1061
A legitimate child is the child who is born with the conception during the marriage relationship.
Article 1062
The period of conception is the period determined from the one hundred and eighty-first day to the three hundred and second day, both inclusive, traced back from the day of the birth of a child.
Where it can be proved that conception took place within a period traced back within the one hundred and eighty-first day under the preceding paragraph or prior to the aforementioned three hundred and second day, such period is deemed to be the period of conception.
Article 1063
Where the wife conceives during the continuance of a marriage relationship, a child so born is presumed to be legitimate.
In regard to presumption of legitimacy provided in the preceding paragraph, either the husband, the wife, or the child may bring an action for disavowal if he or she can prove that the child was born out of wedlock.
A disavowal pursuant to preceding paragraph shall be effected within two years after one of spouses has the knowledge that the child was born out of wedlock or after the child has the knowledge that he/she was born out of wedlock, except that the child, who has the knowledge that he/she was born out of wedlock when he/she was a minor, can still file the disavowal within two years after he/she reaches maturity.
Article 1064
A child born out of wedlock whose natural father and mother have concluded a marriage to each other is deemed to be legitimate.
Article 1065
A child born out of wedlock who has been acknowledge by the natural father is deemed to be legitimate; where he has been maintained by the natural father, acknowledgment is deemed to have been established.
In the relation to his mother, a child born out of wedlock is deemed to be legitimate and no acknowledgment is necessary.
Article 1066
A child born out of wedlock or his mother may repudiate the acknowledgment by his natural father.
Article 1067
Where there is a fact sufficient to prove that the person is the natural father of the child born out of wedlock, the child born out of wedlock, or the mother, or other statutory agent, may claim acknowledgement from the natural father.
The claim provided in the preceding paragraph can be filed after the death of the natural father against the father’s successors or the social welfare authority if the natural father does not have successors
Article 1068
(Repealed)
Article 1069
The effect of legitimation of a child born out of wedlock is retroactive as from the time of birth, but the existing rights of the third parties will not be affected thereby.
Article 1069-1
The child born out of wedlock have been claimed acknowledgement from his natural father, the provisions in Article 1055, Article 1050-1, and Article 1055-2 shall be applicable mutatis mutandis to the rights and duties of the minor child.
Article 1070
When the natural father has acknowledged a child born out of wedlock, such acknowledgment shall not be revoked, except where the facts prove that the person is not the natural father.
Article 1071
(Repealed)
Article 1072
Where a person adopts the child of another as his own child, the adopter is called the adoptive father or adoptive mother and the person adopted is called the adopted son or adopted daughter.
Article 1073
The adopter shall be at least twenty years older than the person to be adopted; except when the husband and wife co-adopt and either of the husband or wife is twenty years older than the person to be adopted and the other sixteen years or older than the person to be adopted, the person can be adopted.
When either the husband or wife adopts the child of the other spouse, the adopter shall be at least sixteen years older than the person to be adopted.
Article 1073-1
None of the following relatives may be adopted as an adopted child:
(1) Lineal relatives by blood;
(2) Lineal relatives by marriage, except adoption of the other party's child by either the husband or the wife; or
(3) Collateral relatives by blood or marriage of a different rank, except where the former is within the sixth degree of relationship and the latter is within the fifth degree of relationship.
Article 1074
When the husband and the wife are to adopt a child, they shall do so jointly, except where one of the following conditions is met:
(1) Where he or she adopts the other party’s child; or
(2) One of the parties cannot make and accept the declaration of intention or his/her life has been uncertain for three years.
Article 1075
Except when being adopted by a husband and wife, a person shall not be simultaneously adopted by two persons.
Article 1076
Where either the husband or the wife is adopting a child, the consent of the other party shall be obtained; except when the party cannot make and accept the declaration of intention or his/her life has been uncertain for three years.
Article 1076-1
When the child is adopted, the consent of the parents shall be obtained; except when one of the following conditions is met:
(1) Where one or both of the parents, who shall but can not exercise the rights and assume the duties in regard to the child or did not protect the interests of the child, refuses to consent; or
(2) Where one or both of the parents in fact cannot make the declaration of intention and accept the declaration of intention.
The consent provided in the preceding paragraph shall be in writing and notarized, except where the person who petitions for the judicial declaration of the adoption can orally express the consent to the court and the consent shall be recorded in the court record.
The consent provided in paragraph one cannot attach with a condition or duration.
Article 1076-2
A minor of younger than seven years of age shall make the declaration of intention and accept the declaration of intention through his/her statutory agent when he/she is to be adopted.
A minor older than seven years of age shall obtain the consent of his/her statutory agent when he is to be adopted.
The parents of the child to be adopted who have made and accepted the declaration of intention, or consent pursuant to the preceding two paragraphs on behalf of the child as a statutory agent, are able to waive the formality of providing consent pursuant to the preceding provision.
Article 1077
The relationship between an adopted child and his adoptive parents and their relatives is the same as that between a legitimate child with his parents, unless otherwise provided by law.
The rights and duties between an adopted child and his/her natural parents and their relatives is suspended during the period of adoption, except where one party of the husband and the wife adopts the other party’s child, the other party’s rights and duties to the child is not affected by the adoption.
After adopting the child, if the adopter marries the adoptee’s natural father or mother, the adoptive child resumes his/her rights and duties to natural parents; except the right obtained by the third party is not affected.
Where the adoptive child has lineal relatives by blood at the time of adoption, the effect of the adoption is limited to his/her minor and non-married lineal relatives by blood; except where before the adoption, the adult or married lineal relatives by blood consents.
Consent provided by the preceding paragraph applies mutatis mutandis to the second and third paragraphs of Article 1076-1.
Article 1078
An adopted child assumes the surname of the adopter or will maintain original surname.
Where the husband and the wife co-adopt a child, before the registration of the adoption, both parties shall agree in writing regarding if the adopted child should assume the adoptive father or adoptive mother’s surname or maintain the original surname.
The second and fifth paragraphs of Article 1059 apply mutatis mutandis to the adoption.
Article 1079
Adoption shall be effected in writing and petitioned for the court’s approval.
The court shall not approve the adoption where the adoption is based on a ground that it is void, may be annulled, or violates other laws.
Article 1079-1
The court shall approve the adoption of the minor based upon the best interest of the adoptive child.
Article 1079-2
Where an adult is to be adopted, the court shall not approve the adoption if one of the following conditions is met:
(1) By performing the adoption there is an intent to waive legal duties;
(2) The adoption is proved to be unfavorable to the child’s natural parents; or
(3) Other grave reasons that are against the purpose of the adoption.
Article 1079-3
The effect of the adoption is retroactive as from the time that the court’s admission was finalized to the time when the contract of adoption was formed. Except, where the rights obtained by the third party are not affected.
Article 1079-4
The adoption is void if it violates Article 1073, Article 1073-1, Article 1075, Article 1076-1, paragraph one of Article 1076-2, or paragraph one of Article 1079.
Article 1079-5
If the adoption of a child violates the provisions in Article 1074, the spouse of the adopter may apply to the court for annulment of the adoption; however such application shall not be made after six months from the time of knowing the fact or one year from the time of admission given by the court.
If the adoption of a child violates the provisions in Article 1076 or the second paragraph of Article1076-2, the spouse of the adopted person, or the child's statutory agent may petition the court for annulment of the adoption; but such petition shall not be made after six months from the time of knowing the fact or one year from the time of admission given by the court.
The provisions in Articles 1082 and 1083 shall be applied mutatis mutandis to the adoption annulled by the judgment of the court pursuant to the provisions in the preceding two paragraphs.
Article 1080
The relationship between an adopted child and his adoptive parents may be terminated by mutual agreement of the parties.
The termination provided in the preceding paragraph shall be made in writing. Where the adoptive child is a minor, the termination shall be petitioned to the court.
The court’s approval of the adoption under the preceding paragraph must be based on the best interest of the child.
Where the adoptive child is a minor, termination of the adoption is effective at the time when the court’s approval of the termination is finalized.
If the adopted child is younger than seven years old, the intention to terminate the adoptive relationship shall be declared on his behalf by the person who will be his statutory agent after the termination of the adoption.
If the adopted child is a minor of more than seven years old, the termination of the adoptive relationship shall be subject to consent of the person who will be the child’s statutory agent after the termination of the adoption.
Where the husband and wife co-adopt a child, termination of adoption shall be done jointly. However the termination can be done independently if one of the following conditions is met:
(1) Either party, the husband or the wife, cannot make and accept the declaration of intention or his/her life has been uncertain for three years;
(2) Either party, the husband or the wife, is deceased after the adoption; or
(3) The husband and wife are divorced.
Where one party, either the husband or wife, terminates the adoption pursuant to the preceding paragraph, the effect of the termination does not extend to the other party.
Article 1080-1
After the death of the adopted parents, the adopted child may petition the court for approval to terminate the adoption.
If the adopted child is younger than seven years old, the petition to terminate the adoption shall be declared on his behalf by the person who will be his statutory agent after the termination of adoption.
If the adopted child is a minor older than seven years old, the petition for termination of adoption shall be subject to the consent of the person who will be the child’s statutory agent after the termination of adoption.
The court shall not approve the termination of adoption if the court determines that the termination is obviously unfair.
Article 1080-2
The termination of adoption is void, if it violates the second and the fifth paragraphs of Article 1080-2, or the second paragraph of Article1080-1.
Article 1080-3
If the termination of the adoption violates the seventh paragraph of Article 1080, the spouse of the person who terminate the adoption may petition the court for annulment of the termination of the adoption; but such petition shall not be made after six months from the time of knowing the fact or one year from the time of admission given by the court.
If the termination of the adoption violates the provisions in the sixth paragraph of Article 1080 or the third paragraph of Article 1080-1, the person who is the child's statutory agent after the termination of the adoption may petition the court for annulment of the termination of the adoption; but such petition shall not be made after six months from the time of knowing the fact or one year from the time of admission given by the court.
Article 1081
Where either party, the adoptive parents or the adoptive child, meets one of the following conditions, the court can terminate the adoption based on the petition of the other party, administrative authority or interested person:
(1) Where the party has abused and grossly insulted the other party;
(2) Where the party abandoned the other party;
(3) Where the party committed a crime intentionally and is sentenced to more than two years imprisonment without probation; or
(4) Where there is other grave reason that makes it hard to maintain the adoption relationship.
Where the adoptive child is a minor, the court shall terminate the adoption based upon the best interest of the adoptive child.
Article 1082
Where the adoptive relationship has been terminated by the judgment, and the innocent party is thereby reduced to difficulties in livelihood, he may demand payment of an equitable sum of money from the other party.
Article 1083
From the time of the termination of the adoption, the adoptive child and his or her lineal relative by blood who is affected by the adoption shall resume use of his or her surname, and the rights and duties to his or her natural parents and relatives. However, the rights obtained by the third party are not affected.
Article 1083-1
The court may apply mutatis mutandis to the Article 1055-1 when the court rules pursuant to the fifth paragraph of Article 1059, the second paragraph of Article 1059-1, the third paragraph of Article 1078, the Article 1079-1, the third paragraph of Article 1080 or the second paragraph of Article 1081.
Article 1084
Children shall be filial to and respect their parents.
Parents have the rights and the duties to protect, educate and maintain their minor children.
Article 1085
Parents may, within the limit of necessity, inflict punishment upon their children.
Article 1086
Parents are the statutory agents of their minor children.
Where the parents have a conflict of interest with their minor children and therefore cannot be the statutory agents to the children under the law, the court can appoint a special agent based upon its discretion or the petition of parents, minor children, administrative authority, social welfare institution, or other interested person.
Article 1087
Property which accrues to the minor children by inheritance, gift or other gratuitous title constitutes their separate property.
Article 1088
The separate property of a minor child shall be managed by the parents jointly.
The parents have the right to use, and to collect fruits from the separate property of the minor child, but they may not dispose of it except for the interests of the child.
Article 1089
The parents shall jointly exercise their rights and assume their duties in regard to their minor child, unless otherwise provided by law. If one of them can not exercise such rights, the rights shall be exercised by the other party. If the parents can not assume the duties jointly, the duties shall be assumed by the parent who has the ability to do so.
If there is inconsistency between the parents in the exercise of the rights in regard to the grave events of the minor child, they may apply to the court for the decision in accordance with the best interests of the child.
Before the decision of the preceding paragraph, the court shall give the minor child, the authorities concerned, or the social welfare institution a hearing.
Article 1089-1
Where the parents do not continue their cohabitation for more than six months, exercise of the rights or assumption of duties to the minor applies mutatis mutandis to the Article 1055, Article 1055-1 and Article 1055-2.
Article 1090
Where one of the parents has abused his or her rights over their children, the court can suspend all or part of his or her rights to the children based upon its discretion or petition of the other party, minor children, administrative authority, social welfare institution or other interested person.
CHAPTER IV Guardianship
Section 1 Guardianship over Minors
Article 1091
A guardian shall be appointed for a minor when he has no parent or when both the parents can not exercise the rights nor assume the duties in regard to the minor child. But this does not apply where the minor has been married.
Article 1092
In regard to a minor child, parents may authorize, in a written form, another person to perform the function of a guardian for specific matters and within a fixed period.
Article 1093
The parent who exercises and takes rights and responsibilities to the minor may appoint a guardian by will.
The guardian, appointed by the preceding paragraph, within 15 days after knowing being appointed as a guardian, shall report his/her name and residence to the court; he/she shall also apply for members, appointed by local government, in order to draw up an inventory of the ward’s property with those members.
If the guardian does not report to the court within the said periods, he/she is deemed to waive his/her rights.
Article 1094
Where both parents cannot exercise the rights nor assume the duties in regard to a minor child, or where the parents die without appointing any guardian by a will, or the appointed guardian refuses to be sworn in, the following shall be determined as the guardian in order
(1) Grandparents living in the same household with the minor;
(2) Elder brothers or sisters living in the same household with the minor;
(3) Grandparents not living in the same household with the minor;
Guardian, within 15 days after knowing being appointed as a guardian, shall report his/her name and residence to the court; he/she shall also apply for members, appointed by local government, in order to draw up an inventory of the ward’s property with those members.
If the guardian could not be determined under paragraph 1, the court may, upon the application of the minor child, any relative within the fourth degree of kinship, the public prosecutor, competent authority, or the other interested person, for the best interests of the minor child, appoint or replace the child's elder collateral relative by blood within the third degree of relationship, competent authority, the social welfare institution, or any other proper person as the guardian, and order the way and manner of guardianship.
The court shall also appoint members for drawing up an inventory of the ward’s property when appointing guardians under preceding paragraph or appointing/changing guardians under provisions of Article 1106 and Article 1106-1.
In the absence of the guardian provided in the first paragraph, and before the appointment according to paragraph 3 of the provision being decided by the court, the local authorities of social welfare concerned shall be the guardian of the minor.
Article 1094-1
When electing or changing guardians, for the best interest of the ward, the court shall take everything into consideration; the following things shall be paid attention to
(1) the ward’s age, gender, willingness, health, and the need of developing the ward’s personality.
(2) the guardian’s age, employment, personality, willingness, attitude, health, finance, and criminal records.
(3) relations between the guardian and the ward or relations between the ward and others living in the same household.
(4) when a juristic person is the guardian, the category and content of its business; and relations between the juristic person and its representative and the ward.
Article 1095
If the guardian has good causes, with the court’s permission, he/she may dismiss his/her duty.
Article 1096
The following persons shall not act as guardians
(1) minors.
(2) persons who are subjects to the commencement of guardianship or assistantship and have not yet revoked those orders.
(3) persons who declare bankrupt and have not yet resume their rights.
(4) absent persons.
Article 1097
Unless it is otherwise provided, a guardian shall, within the limits required for the protection and advancement of the ward's interests, exercise the rights and assume the duties of the parents in regard to a minor child. Where the guardianship is only provisionally authorized by the parents, the function of the guardian shall be limited to those so authorized.
When there are disagreements, regarding the ward’s serious rights, among several guardians, the court may designate one guardian to enforce rights.
The court may take opinions from the ward, competent authority or organization of social welfare when making preceding decision.
Article 1098
A guardian within the scope of his/her delegated power is the statutory agent of his ward.
Where the guardian has a conflict of interest with his/her ward or he/she cannot be the statutory agent to the ward under the law, the court can appoint a special agent based upon its discretion or the petition of the guardian, the ward, competent authority, organization of social welfare, or other interested persons.
Article 1099
On the commencement of guardianship, the guardian shall, in collaboration with the person designated by the will, local government, or the court, draw up an inventory of the ward's property within two months and shall also report to the court.
The court may extend periods when the guardian applies for extension.
Article 1099-1
The guardian may only do what is necessary for the management of the property being guarded before the completion of the inventory of the ward's property and also before reporting to the court.
Article 1100
The guardian shall exercise guardianship with the care of a good administrator.
Article 1101
The guardian shall not use or dispose of the ward's property except for the interests of the ward.
When the guardian does the following act, he/she shall acquire permission from the court; otherwise the act will not be effective.
(1) purchasing or disposing real property for the ward.
(2) renting out or providing others to use the ward’s living building or its base, or terminating lease of the ward’s living building or its base. The guardian shall not take the ward’s property for investment with the exception of purchasing state bond, treasury bills (TB), Central Bank’s saving fund, financial debt, negotiable certificates of deposit (NCD), banker’s acceptances (BA), or guaranteed-commercial paper (CP).
Article 1102
A guardian shall not acquire the property from his ward.
Article 1103
The ward’s property is managed by the guardian. All necessary payment for enforcing guardianship is paid by the ward’s assets.
The court, if necessary, may ask the guardian provide reports regarding guardianship, inventory of properties, in order to check guardianship or the ward’s assets.
Article 1103-1
(Deleted)
Article 1104
A guardian may claim for compensation; the court determines the amount of compensation based on the labor involved and the assets of the ward.
Article 1105
(Deleted)
Article 1106
When the guardian has any of the following circumstances and the ward has no guardian under paragraph 1 of Article 1094, the court may elects other proper guardian for the ward by its authority or upon the application of the ward or at the request of the applicant set forth in paragraph 3 of Article 1094
(1) death.
(2) with the court’s permission.
(3) any of the circumstances set forth in Article 1096.
Before the court elects a guardian, competent authority of local social welfare is the guardian of the ward.
Article 1106-1
If there is enough fact which indicates that the guardian does not act for the best interest of the ward, or other reasons indicate that the guardian should not be the guardian, the court may order guardianship to other proper person based on application made by applicant of paragraph 1 of preceding Article; and limitations set in paragraph 1 of Article 1094 do not apply.
Article 1107
When guardianship has changed, the guardian shall hand over the ward’s property to the new guardian. When the cause of guardianship ceases to exist, the guardian shall return the ward’s property to the ward; where the ward has deceased, the guardian shall hand over the ward’s property to his/her heirs. Under preceding two paragraphs, the guardian shall make statement of account for the ward’s property within two months from the termination of the guardianship and deliver the statement to the new guardian, the ward, or the ward’s heirs. The guardian may not be discharged from his/her duties until the new guardian, the ward, or the ward’s heirs approve his/her statement of account.
Article 1108
On the death of the guardian, the aforesaid account in the preceding article shall be rendered b his/ her heirs; if no heirs or heirs are unknown, the new guardian takes over the work, he shall report to the court along with an inventory of the ward’s property.
Article 1109
If the guardian, intentionally or negligently, has caused damage to the ward when performing his duties, the guardian shall compensate the ward any injury arising therefrom.
A claim for damages, based on preceding paragraph, shall be extinguished if not exercised within five years from the date the guardianship is revoked; if there is a new guardian, the period begins from the date the new guardian starts his/her guardianship.
Article 1109-1
The court shall inform the Household Administration Bureau for registration when electing guardians, allowing guardians’ dismiss, and re-electing or changing guardians.
Article 1109-2
If a minor is the subject to the commencement of guardianship based on Article 14, rules set forth in section 2 of this Chapter regarding adult guardianship apply to the minor as well.
Section 2 Guardianship and Assistantship over Adults
Article 1110
A person who has become subject to the order of commencement of guardianship shall be appointed to a guardian.
Article 1111
When ordering commencement of guardianship, the court shall elect one or more guardians among spouse, any relative within the fourth degree of kinship, relative resides together in recent year, competent authority, organization of social welfare or other proper person; and the court shall also appoint persons for drawing up an inventory of the ward’s property.
When selecting guardians based on preceding paragraph, the court may ask competent authority or organization of social welfare provide visiting report and suggestion. Applicants of guardianship or interested persons may also provide the court related information or evidence.
Article 1111-1
When electing guardians, for the best interest of the ward, the court shall first take the ward’s opinion and every other things into consideration; the following things shall be paid attention to
(1) the ward’s physical and spiritual health, his/her life and finance.
(2) relations between the ward and his/her spouse, children, and others living in the same household.
(3) occupation, experience, opinion of the guardian and relations between the guardian and the ward.
(4) when a juristic person is the guardian, the category and content of its business; and relations between the juristic person and its representative and the ward.
Article 1111-2
Juristic person or organization who provides care services to the ward, or the representative of, responsible person of, or any person who has a contract of hire of services, mandate or other similar relations with the juristic person or organization, shall not be the guardian of the ward. The spouse, any relative by blood within the fourth degree of kinship, and any relative within the second degree of kinship of the ward are not subject to the above restriction.
Article 1112
When enforcing guardianship relating the ward’s life, treatment, and financial management, the guardian shall respect the ward’s intent.
Article 1112-1
When selecting several persons as guardians, the court may designate guardians enforce their rights jointly or separately.
The court may revoke or change designation when guardians, the ward, applicants under paragraph 1 of Article 14 apply for a change.
Article 1112-2
The court shall inform the Household Administration Bureau for registration when ordering the commencement of guardianship, revoking guardianship, selecting guardians, allowing guardians’ dismiss, and re-electing or changing guardians.
Article 1113
Unless otherwise provided by the provisions of this Section, the provisions concerning the guardianship over minors shall apply mutatis mutandis to the guardianship over adults.
Article 1113-1
An assistant shall be appointed to a person who has become subject to the order of commencement of assistance.
Assistant and his/her related duties shall apply mutatis mutandis to Articles 1095, 1096, 1098(2), 1100, 1102, 1103(2), 1104, 1106, 1106-1, 1109, 1111, 1111-1, 1111-2, 1112-1, and 1112-2.
Section 3 Adult Guardianship by agreement
Article 1113-2
A guardianship over adults by agreement is an agreement whereby parties agree that one of them appoint the other party as his/her guardian when he/she has become subject to the order of commencement of guardianship, and the latter agrees to do so.
The parties, as specified in the preceding paragraph, may agree one or several agents; if there is more than one guardian, unless otherwise agreed upon by the parties, the guardianship shall be jointly managed by all the guardians.
Article 1113-3
The conclusion, modification of an adult guardianship agreement shall be made in the notarization made by the notary public. The notary public shall give a written notice to the court for the place of the domicile of the ward within seven days after the agreement notarized.
The notarization, as specified in the preceding paragraph, shall be performed by a notary public in the presence of both parties with their intentions.
An adult guardianship agreement becomes effective from the date of the declaration of commencement of guardianship.
Article 1113-4
Upon making a ruling pronouncing a declaration of commencement of guardianship, the court shall designate a guardian agreed in the guardianship agreement and simultaneously appoint a person who shall provide consultation and assistance to draw up an inventory of property together with the designated guardian; the court shall, if there is any, appoint a property consultant agreed in the guardianship agreement who shall provide consultation and assistance to draw up an inventory of the ward’s property; however, the court may change the consultation to other proper person by its authority If there is no property consultant agreed in the guardian agreement or the property consultant does not act for the interest of the ward.
Before the declaration of the preceding paragraph,
If there is enough fact which indicates that the guardian does not act for the interest of the ward, or other reasons indicate that the guardian should not be the guardian, the court may order guardianship to other proper person provided in paragraph 1 of Article 1111.
Article 1113-5
Before the declaration of the commencement of guardianship, both parties may at any time withdraw from the guardianship agreement.
The withdrawal of the guardianship agreement shall be made with a written notice by one party to the other; this withdrawal takes effect after the written notice notarized by the notary public. The notary public shall give a written notice to the court for the place of the domicile of the ward within seven days after the agreement notarized. To withdraw a part of the guardianship agreement is deemed to have been withdrawn as regards the whole agreement.
After the declaration of the commencement of guardianship, if the ward has good causes, with the court’s permission, the ward may terminate the guardianship agreement; if the guardian has good causes, with the court’s permission, he/she may dismiss his/her duty.
When the court approves the agreement termination under preceding paragraph, the court may order guardianship to other proper person provided in paragraph 1 of Article 1111.
Article 1113-6
After the declaration of the commencement of guardianship, where guardians manage their guardianship jointly, all of them in cases provided by paragraph 1 of Article 1106, or paragraph 1 of Article 1106-1, the court may order guardianship to other proper person provided in paragraph 1 of Article 1111 or change guardian at the request of the applicant provided in paragraph 1 of Article 14 or by its authority.
After the declaration of the commencement of guardianship, where guardians by agreement manage their guardianship separately, if guardians who manage the same guardianship in cases by paragraph 1 of Article 1106 or paragraph 1 of Article 1106-1, the court may order guardianship to other proper person under preceding paragraph or change all guardians in the same guardianship. However, the court shall first elect the one or change the guardianship to the one who manages other guardianship, if there is no other reasons indicate that the one should not be the guardian.
After the declaration of the commencement of guardianship, one or several guardians set forth in preceding two paragraphs in cases provided by paragraph 1 of Article 1106, the guardianship shall be changed to other guardian.
After the declaration of the commencement of guardianship, one or several guardians set forth in paragraph 1 and paragraph 2 in cases provided by paragraph 1 of Article 1106-1, the court may dismiss his/her guardianship at the request of the applicant provided in paragraph 1 of Article 14 or by its authority, the guardianship shall be changed to other guardian.
Article 1113-7
The ward shall pay or not pay the remuneration to guardian as agreed in the guardianship agreement; the court, in the absence of agreement, may determine the amount of his/her remuneration by the request of the guardian, taking into account the efforts paid into carrying out the guardianship and the assets of the ward.
Article 1113-8
If a guardianship agreement of an earlier date and a guardianship agreement of a later date conflict, the former is deemed to have been withdrawn in whole by the person in question.
Article 1113-9
The parties in the guardianship agreement may agree to eliminate the limitation to an agent in paragraph 2、3 of Article 1101.
Article 1113-10
Unless otherwise provided by the provisions of this Section, the provisions concerning guardianship over adults shall apply mutatis mutandis to adult guardianship by agreement.
CHAPTER V Maintenance
Article 1114
The following relatives are under a mutual obligation to maintain one another:
(1) Lineal relatives by blood;
(2) One of the husband and the wife and the parents of the other party living in the same household;
(3) Brothers and sisters;
(4) The head and the members of a house.
Article 1115
In case there are several persons bound to furnish maintenance, the order in which they are to perform such obligation is as follows:
(1) Younger lineal relatives by blood;
(2) Elder lineal relatives by blood;
(3) Head of the house;
(4) Brothers and sisters;
(5) Members of the house;
(6) Daughter-in-law and son-in-law;
(7) Parents of either the husband or the wife.
Among the elder lineal relatives by blood or younger lineal relatives by blood, the person nearest in degree of relationship will be the first.
If there are several persons bound to furnish maintenance and of the same degree of relationship, such obligation shall be borne by them according to their respective economic ability.
Article 1116
In case there are several persons entitled to maintenance, and the economic ability of the person bound to furnish maintenance is not sufficient to maintain all of them, the person to receive maintenance shall be determined in the following order:
(1) Elder lineal relatives by blood;
(2) Younger lineal relatives by blood;
(3) Members of the house;
(4) Brothers and sisters;
(5) Head of the house;
(6) Parents of either the husband or the wife;
(7) Daughter-in-law and son-in-law.
Among elder lineal relatives by blood or younger lineal relatives by blood, the person nearest in degree of relationship will be the first.
Where there are several persons entitled to maintenance and of the same degree of relationship, each shall receive maintenance according to their respective needs.
Article 1116-1
The husband and the wife are under a mutual obligation to maintain each other, the order in which they are to perform such obligation is the same with the younger lineal relatives by blood, and the order in which they are entitled to receive maintenance is the same with the elder lineal relatives by blood.
Article 1116-2
The obligation of the parents to maintain their minor child shall not be affected by the annulment of the marriage or the divorce.
Article 1117
Persons entitled to maintenance shall be limited to those who can not support the living and are unable to earn the living.
The limitation in respect of inability to earn a living in the preceding paragraph shall not apply to the case of the elder lineal relatives by blood.
Article 1118
If a person who can no longer support his own living if he assumes the obligation of furnishing maintenance to another, he may be exempted from such an obligation, but his obligation could only be relieved if the person entitled to receive maintenance is the elder lineal relatives by blood or the spouse.
Article 1118-1
If it would be grossly inequitable for a person liable for maintenance, he may ask the Court to mitigate such an obligation when the person who is entitled to maintenance has one of the following acts:
(1) If the person entitled to maintenance has intentionally maltreated, insulted or committed severe misconduct, physically and spiritually, against the person liable for maintenance, his/her spouse, or a close relative of the person liable for maintenance.
(2) Without justifiable reason, the person entitled to maintenance did not fulfill his/her obligation to the person liable for maintenance.
The provisions of subsection (1) and (2) do not apply to the person entitled to maintenance who is lineal descendants by blood of the person liable for maintenance.
Article 1119
The extent of furnishing maintenance shall be determined according to the needs of the person entitled to maintenance, and the economic ability and social status of the person bound to furnish it.
Article 1120
The manner of furnishing maintenance shall be determined by mutual agreement between the parties, or if they can not come to agreement, by the family council. Except if the parties do not mutually agree upon the amount of the maintenance payment, the court shall determine the amount.
Article 1121
Either party may demand an alteration in the extent and the manner of furnishing maintenance on the ground of change of circumstances.
CHAPTER VI House
Article 1122
A house is a community of relatives who live in the same household with the object of maintaining the common living permanently.
Article 1123
Each house shall institute a head.
Persons belong to the same house are, except the head of the house, the members of the house.
Persons who are not relatives but who live in the same household with the object of maintaining the common living permanently are deemed to be the members of the house.
Article 1124
The head of a house shall be elected from among the community of the relatives. If there is no such election, the headship shall fall on the person who is the highest in rank [of relationship]; or where the ranks are equal, on the person who is senior in age. Where the person who is the highest in rank [of relationship] or senior in age is unable or unwilling to manage the house affairs, he shall designate a member of the house to act for him.
Article 1125
The affairs of a house shall be managed by the head of the house, but he may entrust a part of its affairs to be looked after by the members of the house.
Article 1126
In the management of house affairs, the head of the house shall take care of the interests of all the members of the house.
Article 1127
A member of a house who has reached majority, or, though a minor, has been married, may demand to be separated from the house.
Article 1128
The head of a house may order a member of the house who has reached majority or though a minor, has been married to be separated from the house, provided that he has a good cause for doing so.
CHAPTER VII Family Council
Article 1129
Where a meeting of the family council shall be held in accordance with the provisions of this Code, it shall be convened by the party concerned or his statutory agent or other interested persons.
Article 1130
A family council shall be composed of five members.
Article 1131
Members of a family council shall be selected from among the following relatives of the minor, or of a person who is subject to the order of the commencement of guardianship, or of the deceased person, and in the following order:
(1) Elder lineal relatives by blood;
(2) Elder collateral relatives by blood within the third degree of relationship;
(3) Relatives by blood of the equal rank within the fourth degree of relationship.
Among the persons who are in the same order of the preceding paragraph, the person nearest in degree of relationship will be the first; and among those of the same degree of relationship, the person living in the same household will be the first, or the person senior in age will be the first in the absence of relative living in the same household.
A member of family council as determined according to the preceding two paragraphs who can not or has difficulty to be present at the meeting shall be substituted by the relative of the next order.
Article 1132
Matters which shall be dealt by the family council in conformity with law and have the following condition, the matter may be dealt by the court on the application of the person who has the right to convene a meeting of the family council or any interested person.
(1) In case there are no such relatives as provided in the preceding article, or where such relatives are not enough to constitute the statutory number;
(2) In the event that it is impossible or there is difficulty to convene the meeting of family council;
(3) Where no resolution has been adopted or the holding of such meeting failed though the meeting of family council has convened.
Article 1133
Guardians, minors and persons who are subject to the order of the commencement of guardianship shall not act as members of a family council.
Article 1134
Persons who are called upon to act as members of a family council in conformity with law, shall not decline or resign the office without a good cause.
Article 1135
A family council shall not hold a session without at least three members being present and shall not pass a resolution without the consent of the majority of those present.
Article 1136
Where a member of the family council has personal interests in the matter discussed, he shall not participate in passing the resolution.
Article 1137
Where the person who has the right under Article 1129 to convene a meeting of the family council refuses to obey any of its resolutions, he may complain to the court within three months.