Chinese Civil Code: Background, History and Current Situation

by Ge Jiangqiu & Luo Liuhu

 

In China, the private lawyers have a shared dream – the promulgation of the Chinese Civil Code. Some scholars even claim that its significance is no less than the Constitution and it will become the Chinese version of ‘Declaration of Rights’. Recently, it seems this dream will come true in the near future, because the ruling party has adopted the plan to make a Civil Code for China.

 

Some background information could be provided firstly. From October 20 to 23, the Communist Party of China (CPC) convened the Fourth Plenary Session of 18th CPC Central Committee(十八届四中全会). Xi Jinping(习近平), the President of China and the General Secretary of the CPC Central Committee, made an explanatory report to the plenum. Subsequently, the Plenary adopted the ‘Decision of the CPC Central Committee on Some Major Issues Concerning Comprehensively Advancing Rule of Law’ (《中共中央关于全面推进依法治国若干重大问题的决定》, hereinafter as ‘Decision’). It is the first time for ‘rule of law in China’ becomes the central theme of CPC Plenary Session. Considering the significance of the session,[1] it is acknowledged that the Decision sketches a new blueprint for rule of law in China.

 

It is worthy of highlighting several points announced by the Decision. Firstly, it emphasizes the core position of the Constitution in building the country and government on the basis of rule of law. China decides to improve the implementation, supervision, and interpretation of the Constitution. Secondly, the CPC determines to ensure the judicial fairness and judicial credibility by, inter alia, launching circuit courts and allowing prosecutors to institute public interest litigation. Thirdly, through enhancing the democracy and efficiency of legislative procedure, China declares to establish a more complete legal system for the protection of civil rights and economic development. For instance, the codification of the Chinese Civil Code is thus put on the agenda. The Decisions reiterates that ‘To strengthen the establishment of market-relevant legal institutions, [China will] compile the civil code’.

 

Indeed, this is not the first time that China tried to introduce a civil code. The Draft Civil Code of the Great Qing Dynasty(《大清民律草案》), which is recognized as the first attempt to issue a civil code in Chinese history, was accomplished in 1911 with the help of Japanese scholars Yoshimasa Matsuoka(松岡義正) and Kotaro Shida(志田鉀太郎). Following the approach of the German Civil Code(BGB), this draft consisted of 5 parts: General principles(总则), Obligations(债权), Rights over things(物权), Family(亲属) and Succession(继承). However, this draft was not even promulgated because the Qing dynasty fell in a short time. Despite that this draft did not eventually become binding law, it provided the foundation for codifying civil law in the Chinese context. The codification in subsequent decades of years proceeded on the basis of this draft. As a result, the Republic of China published its Civil Code in 1930. It is widely believed that this code has a vivid brand of German law in its legislative technique and inner logic. Until now, this code is still effective in Taiwan.

 

In Mainland China, the Communist Party has become the party in power since 1949 and the 1930 Civil Code as one of the old-age legislations was abandoned due to the reason that the economic form, social relations and core values had been fundamentally changed in Socialist China. Before 1980s, China tried twice(1954, 1962) to issue a civil code following the approach of USSR Civil Code but the attempts were both failed because of the different reasons. After China’s reform and opening-up, the codification of civil law was put on the agenda again to respond to the demands of a market economy. In 1982, a ‘Draft of Civil Law’(《民法草案》) was made by a legislative group composed of governmental officials and scholars. Although this draft only contained 465 articles, the completeness was considerably high that 8 parts were involved: Fundamental principles(基本原则), Civil actors(民事主体), Ownership of property(财产所有权), Contracts(合同), Intellectual property rights(智力成果权), Succession of property(财产继承权), Civil liabilities(民事责任) and Other regulations(其他规定). Nevertheless, this draft was not promulgated because in early 1980s China had just experienced an immense change and the influence was so comprehensive and deep that people could not reach basic consensus on so many significant issues concerning the national welfare and people’s livelihood. Taking this into account, President Deng Xiaoping(邓小平) and the leading legislator Peng Zhen(彭真) decided to adopt a ‘step by step approach’ that China would make separate legislations while the adoption of a civil code would still be the ultimate objective. Thus, the Marriage Law(《婚姻法》), the Succession Law(《继承法》), the General Principles of Civil Law(《民法通则》) and the Contract Law(《合同法》) as parts of a future civil code were promulgated. In 1998, some legislators and scholars thought it was the right time to issue the civil code. However, the Draft containing 1209 articles that was published in 2002 was widely criticized because it merely pieced the legislations together but did not codify the law as a whole. Many contradictions remained in the draft and even some planned-economy concepts and terminologies were not repealed. After that, the Property Law(《物权法》) and the Tort Liability Law(《侵权责任法》) were issued in 2007 and 2009 respectively. Now, again it is believed the time is ripe that the Chinese Civil Code should be introduced.

 

What is noteworthy, apart from the endeavour at the legislative level, there are at least three proposed drafts provided by three different groups of scholars. For instance, Liang Huixing(梁慧星), as a leading scholar in Chinese civil law academia, assembled some scholars to codify the civil law rules and began to publish his proposed draft already in 2006. The third edition of his draft was published by Law Press in 2013. His proposed draft is composed of 7 parts: General Principles(总则), Property Rights(物权), Principles of Obligations(债权总则), Contracts(合同), Tort Liabilities(侵权责任), Family(亲属) and Succession(继承). In the publications, he provides not only the proposed articles but also the legislative reasons. Another leading scholar Wang Liming(王利明) also published a proposed draft civil code in 2005. The most significant difference between his draft and Liang’s draft is that Wang suggests ‘Rights of Personality’ should be an independent part in the civil code. Both Liang and Wang have participated in drafting national legislations several times before and they even gave lectures to the Standing Committee of the Political Bureau of the Central Committee of CPC. The third proposed draft is provided by Xu Guodong. This draft is named as ‘A Green Civil Code’ due to the reason that the harmony between mankind and nature is more emphasized in comparison to other drafts. These proposed drafts are believed to impose great influence on the draft of the official Chinese Civil Code. The existence of these drafts are also seen as a reason why the time is ripe to issue the civil code, because the legislator can easily obtain inspiration from these proposed drafts.

 

According to some scholars, although the approach of the Chinese Civil Code is not doubted, the law-making process will still be complicated and take a long time. A reasonable prediction is that the Chinese Civil Code will be promulgated in 5-8 years.

 

 

[1] For a brief introduction, see http://www.china-briefing.com/news/2013/11/11/introduction-to-chinas-plenary-sessions-and-the-cpc-central-committee.html, 2014/11/6.

read more

The Comparative Contract Law Course in Maastricht seen through Chinese Eyes

As a MEPLI PhD researcher coming from China, a country whose legal education is almost completely received from the West, it is a pleasure to give comments on a first year course taught in the Maastricht European Law School curriculum. I  attended all lectures and tutorials and was thus fully exposed to the comparative and the ‘Problem Based Learning’ approach in this course. Coming from Tsinghua University, whose law school is one of the best law schools in China and also the 26th in 2012 QS Law School Ranking, I want to share a short ‘comparative study’ of teaching private law in Maastricht and at Tsinghua. I will discuss four aspects.

First of all, the students of Maastricht University attending this course are first year students in their first term – which is surprising to me. At Tsinghua, freshmen will only take fundamental courses like ‘Introduction to Law Science’, ‘Chinese Legal History’ and ‘Constitutional Law’ in their first period; courses on ‘General Principles of Civil Law’ and ‘International Law’ only come later. Moreover, these courses are not comparative, but about Chinese law. They are given by the best professors in Tsinghua Law School in order to inspire the students. The course on ‘Foreign Civil Law’ is only attended by interested students. So to expose freshmen to comparative law from the start is an impressive innovation for Maastricht University.

The second aspect concerns lecturers and reading materials. The course of ‘Foreign Civil Law’ at Tsinghua University is largely influenced by the specialist knowledge of the lecturers. They will focus more on their fields of expertise. The students attending this course in different periods learn different things. At Maastricht University, the content is equal for every student. The Ius Commue Casebook used in the course is undoubtedly excellent, but also a great challenge for freshmen as every student has to get acquainted with law in four countries within eight weeks.

The third aspect is about the teaching method. As is well known, Maastricht University is famous for its ‘PBL’, which is ‘Problem Based Learning’. In the Comparative Contract Law course, students have to solve cases in four different jurisdictions; they do so in small groups guided by a tutor. At Tsinghua University, such case studies are optional in some courses, which means that only the interested students will take these courses. Some students complain that courses with only lectures are too theoretical and that they do not know how to apply the law when they enter legal practice.

The last aspect is about how demanding the courses in the two law schools are. It is clear that a distinguished feature of the Comparative Contract Law course is that it is highly demanding. The students have to make a real effort to pass the exam. However, this is also related to one of the functions of the first year in Maastricht: to select students. In comparison with the cruel Chinese college entrance examination, it is much easier to enter a university in the Netherlands. Therefore, it is understandable that good universities will heighten the elimination rate to guarantee the level and quality of their graduates. From the perspective of the students, some of them told me that they come here because of the broader prospect and international mindset they acquire, while they would have become parochial lawyers if they had remained in their own country and learnt law in their mother tongue.

 

read more