news

한어Русский языкEnglishFrançaisIndonesianSanskrit日本語DeutschPortuguêsΕλληνικάespañolItalianoSuomalainenLatina

mr. xu remarried and died, and his ashes were buried in dongtai, jiangsu by his current wife, ms. chen. mr. xu's daughter, xiao xu, had not had any contact with her father for more than ten years, but after her father was buried, she sued ms. chen and demanded that she return her father's ashes.

on september 4, a reporter from the paper (www.thepaper.cn) learned from the shanghai yangpu district people's court (hereinafter referred to as shanghai yangpu court) that the court had previously heard this general personality rights dispute case and rejected the plaintiff xiao xu's claim in the first instance. the second instance court upheld the original judgment.

in this case, the plaintiff xiao xu is the daughter of mr. xu. after mr. xu divorced ms. peng, a person outside the case, he remarried the defendant ms. chen. on september 5, 2022, mr. xu died, and the defendant ms. chen buried mr. xu's ashes in dongtai city, jiangsu province.

the plaintiff xiao xu believes that ashes, as a specific memorial with symbolic significance of personality, should be handled properly through consultation among close relatives. as mr. xu's daughter, she has the right to place her father's ashes. now the defendant ms. chen has not negotiated with her, which has violated her general personality rights. therefore, she demands that the defendant ms. chen return mr. xu's ashes.

the defendant, ms. chen, argued that around 2000, ms. chen and mr. xu met as colleagues and established a romantic relationship. they lived together and took care of each other, and then got married. burial in dongtai city was mr. xu's last wish, and it was also the common wish of ms. chen and mr. xu. ms. chen is mr. xu's wife, and they have a good relationship. on the contrary, xiao xu and mr. xu have not been in contact for many years, and xiao xu never visited mr. xu when he was sick and hospitalized. after the cremation, ms. chen asked xiao xu to collect the ashes, but xiao xu did not collect them under the pretext of excuses. xiao xu was also notified of the burial, and xiao xu did not raise any objections. now she is asking to open the tomb and return the ashes, which is contrary to public order and good customs.

"the placement of ashes should be based on emotional and moral factors, combined with the attributes of personal interests, and in accordance with the requirements of public order and good customs." ye lan, the presiding judge of the first instance of the case and a third-level senior judge of the yangpu court of shanghai, said that the burial of mr. xu's ashes should be determined from the following three aspects:

first, the deceased’s explicit or knowable intentions should be respected. in this case, mr. xu’s behavior with ms. chen before his death can be inferred to indicate the burial place after his death. combined with the testimony of witnesses, they can confirm each other and reveal mr. xu’s true intentions.

secondly, the subject who exercises the right to bury ashes should be determined by comprehensively considering the closeness of the relationship between the relative and the deceased, the daily life care, material and economic assistance, spiritual and emotional comfort, and the aftermath of the funeral. in this case, ms. chen and mr. xu have lived together for more than 20 years. ms. chen takes care of mr. xu's daily life and hospitalization, and the two have a harmonious relationship. on the contrary, although xiao xu and mr. xu are father and daughter, they have not been in contact for more than ten years. xiao xu did not visit mr. xu during his illness, and the dying and funeral matters were also handled by ms. chen. it can be seen that the relationship between mr. xu and ms. chen is much closer than his relationship with xiao xu.

third, the burial site of the ashes does not violate the mandatory provisions of laws, administrative regulations or public order and good customs. at the same time, civil subjects should follow the principle of honesty and trustworthiness in exercising their rights. xiao xu did not collect the ashes before the burial, and his previous behavior during the burial gave ms. chen a reasonable trust. if xiao xu goes back on his word, it would violate the principle of honesty and trustworthiness.

ye lan, the presiding judge of the first instance, believes that the general personal rights and interests of the deceased's close relatives, represented by the ownership and placement of ashes, are different from absolute rights such as personal rights, property rights, and intellectual property rights. in essence, they should be classified as rights and interests rather than personal rights. therefore, they should be distinguished from absolute rights in terms of the attribution principle and the determination of constituent elements. the disputes over the ownership of ashes are inherently conflicts of relationships and interests within the family. the handling of disputes over personal rights should highlight the value concept of harmony and friendliness, guide people to exercise their rights correctly, and create a healthy and stable humanistic and social environment.

in summary, the shanghai yangpu court ruled that the plaintiff xiao xu’s request for the defendant ms. chen to return mr. xu’s ashes was not supported. the second-instance court rejected the appeal and upheld the original judgment.

(the parties in this article are all pseudonyms)