Approaching the Chinese Civil Code: explanatory note and structure

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This scenario changes with the Chinese Civil Code, approved on May 28, 2020 to enter in force next year.[1]

The explanatory note signed by Mr. Wang Chen, Vice-Chairman of the Standing Committee of the National People’s Congress,[2] provides insight on the backdrop of the Civil Code’s enactment in China.

Below are some initial comments[3] on the explanatory note (1) and the structure of the Civil Code (2).

Further posts may elaborate on other aspects of the Civil Code, especially with regards to my preferred areas of research, such as contracts, torts, damages and dispute resolution.

1/ Explanatory Note

The explanatory note dated May 22, 2020 is addressed to the representatives at the National People’s Congress and comprises four sections.

The first section details the significance of a civil code. It starts from the inception of the idea of a Civil Code within the Chinese government leadership, considered as a policy tool to usher the development of the Chinese system in line with its national characteristics (中国特色社会主义). Previous attempts for preparing a Civil Code had been started in 1954, 1962 and 1979. After this latter attempt, which took place during the period of reform and opening up (改革开放), China veered into a strategy of piecemeal statutory development (成熟一个通过一个), which led to the development of a broad base of civil law provisions. This trend gained momentum in the wake of the 18th National Congress of the Communist Party of China, when the country bolstered its efforts of modernization and development of the rule of law (依法治国).

The note heralds the Civil Code as a step towards the construction of the rule of law and as a symbol of a country’s development, while offering a Chinese contribution to the development of civil law. Describing the Civil Code as an encyclopedia of social life (社会生活的百科全书) the note posits that the Civil Code was a required step for the modernization of national governance. The note also emphasizes the Chinese approach of unifying the regulation of private law (civil and commercial) into a single regime (民商合一) and anticipates that the enactment of the Civil Code is conducive to enhancing certainty in business transactions and therefore necessary to foster a stable market. Therefore, the Civil Code is expected to fulfill the expectations of Chinese citizens with regards to endured economic growth, but also with regards to individual rights, especially in a context of constant development of technology and big data.

The second section lays out the main political pillars for the codification of the Civil Code. In addition to govern development policies and other concerns, the note recognizes among the tenets to the Civil Code a scientific outlook on development (科学发展观), an emphasis on civil rights and the combination of the rule of law with the rule of ethics (依法治国与以德治国), including the promotion of traditional ethical values (传统美德和社会公德).

The reference to traditional ethical values echoes a classical discussion in Chinese philosophy and legal studies, the tension between the two balancing views of the law: the notion of “li” (礼) developed by Confucianism,[4] and the concept of “fa” (法) heralded by legalist thinkers. In the Confucian tradition, li corresponds to the law that derives from human nature and moral persuasion.[5] In short, li corresponds to the idea that social relationships should be governed by rites in accordance with the roles played by the individual in a society.[6] Conversely, the notion of fa evolved in the Warring States period (V to III centuries BC) and adopted during the first unification of China under the Qin emperor in 221 BC. It was developed in contrast with morals and focuses on the law that is enacted by the ruler[7] as a product of reason,[8] and attempting to produce practical results in society, especially with regards to criminal law provisions. In a rough comparison, the two ideas are similar to those of natural law and positivism in the western legal tradition. Of course, these two notions were not entirely separate and the traditional legal system was rather constituted as a hybrid system[9] adopting provisions inspired by these two, among other notions.[10]

By ascribing a place to ethics, the Civil Code appears to follow the trend of rehabilitation of Confucianism and classical Chinese culture (国学) that is perceived in China in recent decades. It will be interesting to investigate what will be the extent of the influence of ethics in the Chinese Civil Code and what are the provisions that it translates into.

The third section details the drafting and deliberation of the Civil Code. It indicates that the Civil Code was drafted by a committee led by the Legal Working Group to the Standing Committee of the National People’s Congress, but also comprised five other participating bodies: the Supreme People’s Court, the Supreme People’s Procuratorate (Public Prosecutors’ Office), the Ministry of Justice, Chinese Academy of Social Sciences and Chinese Law Society.

The codification work started in 2015, and was based on the General Rules of Civil Law enacted in 1986. During the drafting and review procedure, the outbreak of the Covid-19 epidemic led the committee to review the draft and to adopt targeted amendments.

The fourth section of the explanatory note addresses the main features of each of the seven parts of the Civil Code, and warrant more detailed study in light of the text of each relevant part.

2/ Structure of the Code

The Chinese Civil Code includes 1260 articles divided into seven parts (编). Such parts are divided in sub-parts (分编), chapters (章) and sections (节).

Initially, the Code includes a general part (总则). The general part was approved in October 2017 and enacted in a standalone statute entitled “General Provisions of the Civil Code”.[11] The General Provisions were restated in the Civil Code, corresponding — with edits and additions — to the initial 204 articles. Among the provisions included in the Civil Code that were absent from the General Provisions is the fourth paragraph of Article 34, which provides for temporary guardianship of infants in case of incapacity of the guardian due to an emergency situation, a provision possibly inspired by the Covid-19 pandemic.

Civil lawyers can easily grasp the importance of providing for a general part. This technical approach entails many consequences as to how the code operates as a system. Civil codes that include a general part, such as the German BGB of 1900 or the Brazilian Civil Code of 2002, separate overarching provisions in a general part that will lay ground rules applicable to the entire civil law system. Although they also provide for general rules, other Civil Codes such as the French Civil Code of 1804 and the Italian Civil Code of 1942, do not include a general part.

The General Part of the Chinese Civil Code consists of ten chapters dealing with basic provisions (基本规定), natural persons (自然人), legal persons (法人), unincorporated organizations (非法人组织), civil rights (民事权利), civil juristic acts (民事法律行为 – which include provisions regarding the formation of agreements, their efficacy and the leeway granted to party autonomy), agency (代理), civil liability (民事责任, including remedies and indemnification rules in case of breach of obligations), limitation periods (诉讼时效) and calculation of time periods (期间计算).

The following six parts of the Chinese Civil Code regulate real property rights (物权), contracts (合同), personality rights (人格权), marriage and family (婚姻家庭), successions (继承), tort liability (侵权责任), and are followed by complementary provisions (附则).

The complementary provisions include a rule of interpretation for number expressions used in the code and the provisions that as from 2021 revoke nine of the severed statutes that currently regulate civil law matters, such as (i) the marriage law of 2005[12], (ii) the successions law of 1985[13], (iii) the adoptions law of 1992[14], (iv) general principles of civil law of 1986[15], (v) the guarantees law of 1995[16], (vi) the contract law of 1999[17], (vii) the property law of 2007[18], (viii) the tort liability law of 2009[19], and (ix) the General Provisions of the Civil Code, which enacted the general part of the Civil Code separately in 2017.[20]

Conclusion

While the English common law, with its emphasis on tradition and continuity, is reckoned as a bulwark of civil liberties, since it derives from precedents coalesced from numerous individual cases throughout history, the Civil law systems wager on the power of reason to devise general rules to guide (and, if necessary, to change) society.

The Chinese Civil Code rekindles the debate on codification and, from a broader perspective, on the power of law to change societies. This debate echoes the lessons of the enlightenment and legal rationalism. The study of this new code grants access to a new wealth of solutions based on the cultural background of one of the most enduring and ingenious civilizations of the world, which appears to reconciliate itself with its traditional ethical rules in this code, while at the same time adopting technically crafted rules aimed at upholding its development.

Notes

[1] http://www.xinhuanet.com/politics/2020-06/01/c_1126061072.htm

[2] http://www.npc.gov.cn/npc/c30834/202005/50c0b507ad32464aba87c2ea65bea00d.shtml

[3] The author is a legal counsel at Souto Correa Advogados, specializing in disputes resolution (mainly arbitration), and also a researcher of Civil law and a mandarin speaker (not licensed to practice at the PRC).

[4] The debate is well summarized by Prof. Fan Kun, see Arbitration in China: a legal and cultural analysis. Oxford and Portland, Oregon: Hart Publishing, 2013, p. 186 and following.

[5] VANDERMEERSCH, Léon. Ritual and Law in Chinese and Wester Traditions. Chinese Cross Currents. Macau, v. 2, No. 1, Jan.-Mar. 2005, p. 10: “The importance given to self in ritual behavior sharpens the feeling of face, that is to say, the sensitivity towards anything that might sully the image that other have of us. The more a society is ritualized, the more the feeling of face. ‘When it is the rites that assure good order (instead of penal law)’, says Confucius, ‘it is the sense of shame that acts as the regulator’.”

[6] CHANG, Anne. Histoire de la pensée chinoise. Paris : Seuil, 1997, pp. 74 and 75: “Dans ses références au li 禮, Confucius fait souvent allusion à l’origine religieuse du mot. […] Le li est donc ce qui fait l’humanité d’un groupe humain et de chaque homme dans ce groupe. En effet, les sentiments les plus instinctifs (attirance, répulsion, souffrance, etc.) ne deviennent proprement humains que lorsque les hommes leur donnent un certain sens, autrement dit, lorsqu’ils le ritualisent […]. Dans la tradition confucéenne et plus généralement dans la culture chinoise, le comportement rituel consiste même le critère de distinction entre l’humain et la brute, mais aussi entre êtres civilisées et barbares.”

[7] CHANG, Anne. Histoire de la pensée chinoise. Paris : Seuil, 1997, p. 240 and following.

[8] BARTON, John H. et al. Law in Radically Different Cultures. West Publishing Co., 1983, p. 110.

[9] FAN, Kun. Arbitration in China: a legal and cultural analysis. Oxford and Portland, Oregon: Hart Publishing, 2013, p. 187.

[10] For instance, a homophone of li (理) represents the idea of reason or justice.

[11] https://www.chinalawtranslate.com/bilingual-general-provisions-of-the-civil-code/?lang=en

[12] http://www.gov.cn/banshi/2005-05/25/content_847.htm

[13] http://www.npc.gov.cn/wxzl/gongbao/2000-12/06/content_5004457.htm

[14] http://www.npc.gov.cn/wxzl/gongbao/2000-12/05/content_5004561.htm

[15] http://www.npc.gov.cn/wxzl/wxzl/2000-12/06/content_4470.htm

[16] http://www.gov.cn/banshi/2005-09/01/content_68752.htm

[17] http://www.gov.cn/banshi/2005-07/11/content_13695.htm

[18] http://www.gov.cn/flfg/2007-03/19/content_554452.htm

[19] http://www.gov.cn/flfg/2009-12/26/content_1497435.htm

[20] http://www.npc.gov.cn/zgrdw/npc/xinwen/2017-03/15/content_2018907.htm, https://www.chinalawtranslate.com/bilingual-general-provisions-of-the-civil-code/?lang=en[:]