Copyright 2015 by Stanford University

A certain Ms. LI and GUO X Yang

v.

GUO X He and a certain Ms. TONG,

A Succession Dispute

Guiding Case No. 50

(Discussed and Passed by the Adjudication Committee of the Supreme People’s Court

Released on April 15, 2015)

CHINA GUIDING CASES PROJECT

English Guiding Case (EGC50)

November 15, 2015 Edition*

* The citation of this translation of the Guiding Case is: 《李某、郭某阳诉郭某和、童某某继承纠纷案》

(A certain Ms. LI and GUO X Yang vs. GUO X He and a certain Ms. TONG, A Succession Dispute), CHINA GUIDING

CASES PROJECT, English Guiding Case (EGC50), Nov. 15, 2015 Edition, available at

http://cgc.law.stanford.edu/guiding-cases/guiding-case-50.

This document was primarily prepared by Tiantian Dai, Oma Lee, Thomas Rimmer, Brad Sova, Matthew

Wells, and Tingting Xu. The document was finalized by Sean Webb, Jordan Corrente Beck, and Dr. Mei Gechlik.

Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the

headings to correspond with those boldfaced in the original Chinese version, was done to make the piece more

comprehensible to readers. The following text, otherwise, is a direct translation of the original text and reflects the

formatting of the Chinese document released by the Supreme People’s Court.

The following Guiding Case was discussed and passed by the Adjudication Committee of the Supreme

People’s Court of the People’s Republic of China and was released on April 15, 2015, available at

http://www.chinacourt.org/article/detail/2015/04/id/1602392.shtml. See also 《最高人民法院关于发布第十批指

导性案例的通知》 (The Supreme People’s Court’s Notice Concerning the Release of the Tenth Batch of Guiding

Cases), Apr. 15, 2015, available at http://www.chinacourt.org/law/detail/2015/04/id/148149.shtml.

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2

Keywords

Civil Succession Artificial Insemination Legitimate Child

Main Points of the Adjudication

1. Where, during the time of a spousal relationship, [a husband and wife] together agree to

use another person’s sperm to conduct artificial insemination causing the wife to become

pregnant, [and] the husband then reneges, but the wife persists in giving birth to the child,

[the child] should be regarded as a legitimate child of both the husband and the wife

regardless of whether the child is born during the time of a spousal relationship.

2. If a will made by a husband or a wife does not reserve a share of the estate for [their]

fetus, the content of that part of the will is invalid because [it] violates Article 19 of the

Succession Law of the People’s Republic of China. When the estate is divided, a share of

the succession should be reserved for the fetus in accordance with Article 28 of the

Succession Law of the People’s Republic of China.

Related Legal Rule(s)

Article 57 of the General Principles of the Civil Law of the People's Republic of China

Article 19 and Article 28 of the Succession Law of the People’s Republic of China

Basic Facts of the Case

A certain Ms. LI (李某), the plaintiff [in this case], claimed: Unit 306, a housing

[property] located in a certain residential community in Nanjing Municipality, Jiangsu Province,

was joint property of a husband and wife that she [owned] with the decedent GUO X Shun.

After GUO X Shun died of an illness, his son GUO X Yang (郭某阳) was born. GUO X Shun’s

estate should be jointly inherited by the statutory successors, including [his] wife Ms. LI, [his]

son GUO X Yang, and GUO X Shun’s parents, i.e., defendants GUO X He (郭某和) and a

certain Ms. TONG (童某某). [Ms. LI] requested that the court, when the estate was analyzed

[and divided] for succession, consider that GUO X He and Ms. TONG had their own housing

property and retirement pay, and that Ms. LI did not have a fixed income and still had to raise a

young child. [Therefore, the court should] offer [more] care to Ms. LI and GUO X Yang.

GUO X He and Ms. TONG, the defendants [in this case], defended their position,

claiming: When [their] son GUO X Shun was still alive, he left a will specifically granting the

aforementioned Unit 306 to the two defendants. Therefore, [provisions on] statutory succession

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3

were not applicable to that housing property. There was no blood relationship between GUO X

Shun and the child born by Ms. LI. In his will, GUO X Shun declared that he did not want this

child, who was born through artificial insemination. After learning that he was suffering from

cancer, he told Ms. LI that [he] did not want this child. It was Ms. LI herself who persisted in

giving birth to the child. Therefore, Ms. LI should be responsible for the child, and the child

should not be listed as a successor of GUO X Shun.

The court handled the case and ascertained: On March 3, 1998, plaintiff Ms. LI and GUO

X Shun registered to marry. In 2002, GUO X Shun purchased in his own name Unit 306, the

housing [property] at issue in this case, which had a construction area of 45.08 square meters,

and completed the housing property rights registration. On January 30, 2004, Ms. LI and GUO

X Shun jointly signed an artificial insemination agreement with the Reproduction and Genetics

Center of Nanjing General Hospital of Nanjing Military Command. The artificial insemination

[procedure] was performed on Ms. LI, and Ms. LI then became pregnant. In April 2004, GUO X

Shun was hospitalized due to illness. After he learned that he was suffering from cancer, [he]

expressed to Ms. LI that he did not want the child. However, Ms. LI did not agree to have an

abortion and persisted in giving birth to the child. On May 20, GUO X Shun prepared a

“testator-written will” at the hospital, declaring that he did not want the child born through

artificial insemination and granting Unit 306 to his parents, GUO X He and Ms. TONG. GUO X

Shun died of the illness on May 23. On October 22 of the same year, Ms. LI gave birth to a son

and named him GUO X Yang. Plaintiff Ms. LI was [not formally] employed and claimed

[government] minimum livelihood guarantee funds every month; [she] did, however, have an

unfixed amount of income from [unstable] work and had joint savings of 18,705.4 yuan [that had

accumulated] during the time of the spousal relationship. Defendants GUO X He and Ms.

TONG were GUO X Shun’s parents, who lived in Unit 305 of the same residential community.

They both had retirement pay. In March 2001, GUO X Shun borrowed 8,500 yuan from Ms.

TONG to open a store.

Nanjing Mainland Real Estate Appraisal Firm Limited Liability Company1 was entrusted

by the court to appraise Unit 306, the housing [property] at issue in this case. In March 2006, the

housing property was appraised and, after appraisal, the housing property was valued at 193,000

yuan.

Results of the Adjudication

On April 20, 2006, the Qinhuai District People’s Court of Nanjing Municipality, Jiangsu

Province, rendered the first-instance judgment:

1 Translators’ note: the original text reads “南京大陆房地产估价师事务所有限责任公司” (“Nanjing

Mainland Real Estate Appraisal Firm Limited Liability Company”). The terms “事务所” (“Firm”) and “有限责任

公司” (“Limited Liability Company”), though repetitive, were both used in the original text.

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• [The court determines that] Unit 306, the housing [property] at issue in this case,

belongs to plaintiff Ms. LI.

• [The court orders] Ms. LI to pay, within 30 days of the judgment’s coming into

effect, plaintiff GUO X Yang 33,442.4 yuan, which is to be placed in the custody

of GUO X Yang’s statutory agent, Ms. LI.

• [The court orders] Ms. LI to pay defendant GUO X He 33,442.4 yuan and pay

defendant Ms. TONG 41,942.4 yuan within 30 days of the judgment’s coming

into effect.

After the first-instance judgment was pronounced, the parties on both sides did not appeal. The

judgment has already come into legal effect.2

Reasons for the Adjudication

In the effective judgment, the court opined: this case had two primary focal points in

dispute: First, was GUO X Yang the legitimate child of GUO X Shun and Ms. LI? Second,

given that GUO X Shun left a will, how should Unit 306 be analyzed [and then divided] for

succession?

On the first focal point in dispute.

It was pointed out in A Reply of the Supreme People’s Court Concerning How to

Determine the Legal Status of Children Born Through Artificial Insemination After a Husband

and a Wife Divorce:

Where, during the time of a spousal relationship, [a husband and wife] together

agree to conduct artificial insemination, the child born should be regarded as a

legitimate child of both the husband and the wife. Relevant provisions of the

Marriage Law of the People’s Republic of China are applicable to [regulate] the

rights and obligations [arising from] the parent-child relationship.

Because GUO X Shun was infertile, [he] signed to agree that the hospital would perform

artificial insemination surgery3 on his wife, plaintiff Ms. Li. This act showed that GUO X Shun

2 Translators’ note: the original text reads “判决已发生法律效力” (“the judgment has already come into

legal effect”). According to Article 155 of the Civil Procedure Law of the People’s Republic of China, judgments

and rulings that “have already come into legal effect” are judgments and rulings of the Supreme People’s Court as

well as judgments and rulings which, according to law, may not be appealed or which have not been appealed within

the prescribed time limit. See 《中华人民共和国民事诉讼法》 (Civil Procedure Law of the People’s Republic of

China), passed, issued on, and effective as of Apr. 9, 1991, amended two times, most recently on Aug. 31, 2012,

effective as of Jan. 1, 2013, available at http://www.gov.cn/flfg/2012-09/01/content_2214662.htm. 3 Translators’ note: though artificial insemination is technically a procedure, not a surgery, the original text

uses “手术” (“surgery”).

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had the intent to have a child together with Ms. LI by means of artificial insemination. As long

as a husband and wife agree to have a child by means of artificial insemination during the time of

the spousal relationship, the child born [subsequent to this agreement] should be regarded as the

legitimate child of both the husband and the wife. Article 57 of the General Principles of the

Civil Law of the People’s Republic of China4 provides:

A civil legal act is legally binding once it is established. The actor must not make

unauthorized alterations or rescind [the legal act] except in accordance with legal

provisions or with the other party’s consent.

Therefore, GUO X Shun’s denial in the will of his parent-child relationship with the fetus carried

by Ms. LI was an invalid civil act. It should be determined that GUO X Yang was the legitimate

child of GUO X Shun and Ms. LI.

On the second focal point in dispute.

Article 5 of the Succession Law of the People’s Republic of China5 (hereinafter referred

to as the “Succession Law”) provides:

After succession begins, [the division of property] is handled in accordance with

statutory [provisions] on succession; where there is a will, it is handled in

accordance with testamentary succession or as a legacy; where there is a legacy-

support agreement,6 it is handled in accordance with the agreement.

After the death of the decedent, GUO X Shun, succession began. Given that GUO X

Shun left a will, this case should be handled in accordance with testamentary succession. Article

26 of the Succession Law provides:

For all of the jointly owned property acquired by a husband and a wife during the

time of their marriage, in the case of [their] estate being divided, unless otherwise

agreed upon, half of the jointly owned property should first be allotted to the

[surviving] spouse, [leaving] the remainder as the decedent’s estate.

4 《中华人民共和国民法通则》 (General Principles of the Civil Law of the People’s Republic of China),

passed and issued on Apr. 12, 1986, effective as of Jan. 1, 1987, amended on and effective as of Aug. 27, 2009,

available at http://www.npc.gov.cn/npc/lfzt/rlys/2014-10/28/content_1883354.htm. 5 《中华人民共和国继承法》 (Succession Law of the People’s Republic of China), passed and issued on

Apr. 10, 1985, effective as of Oct. 1, 1985, available at http://www.npc.gov.cn/wxzl/gongbao/2000-

12/06/content_5004457.htm. 6 Translators’ note: the original text reads “遗赠扶养协议” (legacy-support agreement). According to

Article 31 of the Succession Law of the People’s Republic of China, a citizen may enter into a legacy-support

agreement with a dependent (“扶养人”), who, in accordance with the agreement, has the obligation to support the

citizen during his or her lifetime and attends to the citizen’s interment after his or her death. In return, the dependent

has the right to the citizen’s legacy. See id., Article 31.

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Article 38 of the Supreme People’s Court’s Opinion on Several Issues Concerning the Coherent

Enforcement of the “Succession Law of the People’s Republic of China” provides:

When a testator disposes of by will property belonging to the State, the collective,

or other people, this part of the will should be determined to be invalid.

Unit 306, which was registered under the name of the decedent, GUO X Shun, was already

ascertained to be joint property of the husband and wife obtained during the time of the spousal

relationship of GUO X Shun and plaintiff Ms. LI. After GUO X Shun’s death, one half of the

housing [property] should belong to Ms. LI and [only] the other half could be [considered to be]

GUO X Shun’s estate. In the will, GUO X Shun disposed of the entire housing property of Unit

306 [by conveyance] to his parents, infringing upon Ms. LI’s property rights. [Thus,] this part of

the will should be [considered] invalid. In addition, Article 19 of the Succession Law provides:

A will should reserve the share of the estate necessary [to support] any successor

who lacks the ability to work and has no source of livelihood.

When GUO X Shun made the will, [he] had knowledge of the fetus in his wife’s womb but did

not reserve in the will the necessary share of the estate for the fetus. The content of that part of

the will was [therefore also] invalid. Article 28 of the Succession Law states:

When the estate is divided, a share of the succession should be reserved for the

fetus.

Therefore, when the estate was divided, a share of the succession should have been reserved for

[Ms. LI’s] fetus. In conclusion, only after deducting the property belonging to Ms. LI and the

share of the succession that should have been reserved for the fetus could the remaining part of

GUO X Shun’s estate be handled according to the principle of distribution set out in the will.