On occasion of the upcoming Annual Session of the National People’s Congress, a complete Draft of the first Civil Code of the People’s Republic of China is expected to be finally submitted for deliberation, concluding an ambitious project that started in 2012, but has a much longer history behind it.
In fact, this great work, which confirms the Chinese legal system as belonging to the tradition of the Civil Law Systems, is not entirely new, as the idea of a comprehensive Chinese Civil Code can be seen in various eras of Modern China, although various projects started in this respect remained incomplete.
In more detail, a first attempt of modern codification dates back to the late Qing Dynasty (1902–1911). In fact, during the reformation period of the Qing Dynasty, some basic laws were introduced from the western tradition and became the first attempt of modern legislation in China, which included both Draft Civil Law and Commercial Law modelled after the codes of Germany and Japan.
Afterwards, following the 1911 Revolution, the Nationalist Government promulgated the first Civil Code in China’s history in 1930, which also followed the style of the German Civil Code (Bürgerliches Gesetzbuch, BGB), mainly inspired by Roman Law and in particular by the great corpus iuris civilis (“Code of Justinian”).
The selection of a civil law system, instead of a common law system, by Chinese leaders was owed to the circumstance that it was deemed a better fit, provided the civil law’s reliance on general principles or general clauses, which can be found in the code-like precepts of Confucius, whilst the individualistic common law approach would not fit into a Chinese communitarian society.
However, the establishment of a socialist government in 1949 led to not only the complete abolition of the legal system of the Nationalist Government, but also to a domination of the Soviet style planned economy for more than three decades.
Therefore, the next round of codification was not initiated until the late 1970s after the economic reform and opening-up policy was introduced by Deng Xiaoping. Although two drafts with more than 460 articles were prepared, the political uncertainties in the early years of reform and the insufficient experience and theoretic preparation rendered it very difficult to achieve further progress. As a result, the drafting group was dissolved by the Standing Committee of the National People’s Congress in 1981. However, the General Principles of Civil Law (hereinafter GPCL) was promulgated in 1986 as an interim solution to meet the urgent needs of social and market development of the time.
The GPCL laid down an important foundation for private law development in China with its explicit stipulation for the first time in PRC history that the law shall govern property relations among the subjects with equal legal status. Therefore, it has not only provided economic reform and market development with urgently needed rules and guidelines, but also laid a foundation to develop a civil and commercial law system in China.
Following the abovementioned attempts, the Chinese leadership announced, during its 18th congress in 2012, the codification of Chinese civil law. This process achieved a significant step forward with the approval of the General Rules of Civil Law of the People’s Republic of China (hereinafter referred to as “GRCL”) adopted on 15th March 2017, which are intended to be the first section of a codified PRC Civil Code and contain general legal principles which shall also be applicable for the other sections of the planned Code, which will cover the law of personality, obligations, property law, family and estate law.
This particular structure, encompassing general as well as several special sections, still evokes the BGB and, indirectly, the traditional Code of Justinian. However, the current process of civil codification in China appears to have distinctive features in many respects.
Indeed, the current process of Chinese codification is in contrast with the general trend in other Civil law system countries, as these, following the completion of a civil code between the XIX and the early XX century, are now experiencing the opposite process of de-codification, as the complexity of modern society and the economy has lead western legislators to approve a myriad of special laws, which complements the civil code, frustrates the original aim of having a single code and expression of general principles which may govern any inter-subjective relations.
The Chinese civil code thus represents how the traditional and original structure of civil law codification may be reinterpreted and readapted to the contemporary and complex scenario, thereby realizing the legal dream of having a single and uniform code of law to govern any aspect of private law. Whether or not the Chinese legislator has accomplished this exceptional goal will be appraisable very soon.
*This article was published on the Nanjinger magazine on April 2020.
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