whose surname should the children take? what does the law stipulate?
2024-09-15
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the right to name is the right of a natural person to decide, change and use his or her name. in life, there are many disputes arising from the right to name. what should i do if someone else uses my name? can my children take their mother's surname? on september 12, the haidian district people's court of beijing announced three typical cases to explain the legal provisions and protection of the right to name.
children can take either the father's or the mother's surname
a beijing news reporter learned from the haidian district people's court in beijing that wang fang and li jun fell in love and got married. after marriage, they gave birth to a daughter, li xiaoyu, in 2010. after the birth of the child, wang fang and xiaojun divorced due to a breakdown in their relationship, and xiaoyu was raised by wang fang. not long after, wang fang remarried a man named wang, and the family lived in harmony. li xiaoyu believed that her mother and family members all had the surname wang, and she was the only one with the surname li, which made life together very inconvenient. in order to better integrate into the family, she sued her biological father li jun to the court, hoping that the court would support her taking her mother's surname.
during the trial, li jun did not appear in court due to his busy work, but he submitted a written reply stating that after consultation with wang fang, he agreed that li xiaoyu would take his mother's surname.
after trial, the court held that the parties have the right to dispose of their civil rights and litigation rights within the scope of the law. li jun admitted that li xiaoyu's litigation request did not violate the law. citizens enjoy the right to name, and have the right to decide, use and change their names in accordance with regulations. children can take the father's surname or the mother's surname. according to the actual situation of this case, it is more conducive to li xiaoyu's healthy growth to take the surname of his mother wang fang. the court finally ruled that li xiaoyu can take the surname of his mother wang fang.
the judge believes that natural persons not only have the right to decide to take their father's surname, their mother's surname or other surnames, but can also freely choose their own names and decide whether to use aliases, stage names, pen names and other names. the civil code also stipulates that natural persons should take their father's surname or their mother's surname, but they can choose a surname other than their father's surname or their mother's surname if one of the following circumstances exists: (a) choosing the surname of other direct blood relatives; (b) choosing the surname of the foster parent because they are raised by someone other than the legal guardian; (c) having other legitimate reasons that do not violate public order and good morals. the surnames of natural persons of ethnic minorities can follow the cultural traditions and customs of their own ethnic group.
registering a company under another person’s name constitutes infringement
another case shows that mr. zhang accidentally learned that he was registered as a shareholder and supervisor of company a. however, after careful recollection, he confirmed that he had never had any intersection with company a, nor did he engage in related management and investment activities in company a. therefore, he determined that company a had used his name without authorization for industrial and commercial registration.
mr. zhang believed that company a's use of his identity information violated his right to name, so he sued company a in court, requesting the court to order: company a to cease the infringement and apply to the market supervision administration to change and revoke the company's registration of him as a shareholder and supervisor; company a to publish a statement and apology in the newspaper; company a to compensate for property losses (appraisal fees) of rmb 4,000; company a to compensate for mental damages of rmb 5,000 and bear the litigation costs of this case.
during the trial, company a, despite being legally summoned, did not appear in court to respond, nor did it submit a written statement of defense.
after trial, the court found that the business registration of company a showed that there were three shareholders, including mr. zhang, and mr. zhang also served as the company's supervisor. later, company a's business license was revoked. before filing the lawsuit, mr. zhang commissioned an appraisal agency at his own expense to conduct an appraisal on whether the signature of "mr. zhang" that was retained in the business archives of company a was his own handwriting. the appraisal opinion issued by the appraisal agency showed that the signature of "mr. zhang" in the business registration information of company a was not mr. zhang's handwriting.
after trial, the court held that, based on the appraisal opinion submitted by mr. zhang, the fact that mr. zhang's statement was established that his name was used by someone else without his knowledge and that he became a shareholder and supervisor of company a was established. company a's behavior violated mr. zhang's right to name and it should bear the corresponding tort liability according to law.
ultimately, the court ruled that company a should stop infringing on mr. zhang’s right to name, apply to the industrial and commercial registration authority to change and cancel the registration procedures for mr. zhang’s relevant information, and compensate mr. zhang for his property losses of 4,000 yuan, and rejected mr. zhang’s other claims.
the judge pointed out that it is not uncommon for others to use your name to register for business due to the loss of your identity documents. once you are registered as the legal representative, shareholder, or supervisor of a company, you may have to bear relevant legal responsibilities. therefore, you should keep your original and copy of your identity card properly, and report it immediately if you lose it. if you find that someone has used your information, collect evidence and protect your rights in a timely manner to avoid unnecessary losses.
voluntarily letting someone else buy a car under your name does not constitute an infringement of the right to name
the third case shows that mr. wang has a beijing-licensed car. in the early years, one of his relatives asked mr. wang to borrow the car because he wanted to do business in beijing. considering that he did not live in beijing, mr. wang agreed to let his relative use the car free of charge. in order to facilitate the handling of violations and other matters, mr. wang also gave his original id card and vehicle documents to this relative. however, during the use of the vehicle, the relative transferred mr. wang's original id card, the car and the vehicle driving documents to mr. li for 90,000 yuan, and mr. li used mr. wang's car purchase quota to buy a new car.
one day, mr. wang suddenly received a call from the insurance company saying that his vehicle had an accident. after checking with his relatives, mr. wang learned that his vehicle and car purchase quota had been transferred to mr. li. mr. wang believed that mr. li's use of his id and car purchase quota to purchase a vehicle violated his right to name, and sued mr. li to apologize to him and pay him 100,000 yuan in mental damages.
during the trial, mr. li argued that mr. wang transferred his id card to another person and he spent 90,000 yuan to buy his car purchase quota, and mr. wang should have been aware of this. after purchasing the quota, mr. li only used it to buy a car and did not engage in other activities in mr. wang's name. therefore, he did not infringe mr. wang's right to name.
the court held that in this case, mr. wang voluntarily handed over his id card and vehicle-related documents to others, and mr. li said that he bought mr. wang's car purchase quota for the purchase of the car. although mr. wang emphasized that it was his relatives who sold the car and license plate without his permission, he did not submit evidence to prove this, so the court did not accept his claim.
mr. wang gave important documents such as his id card and vehicle-related documents to others without properly keeping them, which increased his own risks. there is no sufficient evidence to prove that mr. li violated mr. wang's right to name by interference, misappropriation, counterfeiting, etc. therefore, mr. wang's request for mr. li to bear the tort liability for infringement on the grounds that mr. li violated his right to name has no factual and legal basis and is not supported. the final judgment dismissed all of mr. wang's claims.
the judge believes that in reality, due to the purchase restriction policies in some regions, it is not uncommon to buy cars and houses in someone else's name. if the relevant laws, regulations and policies of the state have special provisions and restrictions on the purchase and transaction of vehicles and real estate, the purchaser must meet the prescribed conditions and the purchase qualification is exclusive. if someone uses another person's name to buy a car or house, it is an act of maliciously circumventing laws, regulations and policies, and the contract signed by both parties may be invalid due to violation of the mandatory provisions of the law. once the contract is invalid, although the actual investor can get back the investment, he cannot obtain the ownership of the real estate or vehicle, and the nominal person may also lose the relevant purchase qualification.
(all characters in this article are pseudonyms)
beijing news reporter wu linshu editor yang hai proofreader li lijun
