Updated: Oct 1, 2021
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On January 1, 2021 the first Civil code of People’s Republic Of China (zhonghua renmin gongheguo minfadian 中华人民共和国民法典) became effective. Adopted by the 13th National People’s Congress on 28 May 2020, it signs the beginning of a new era and represents a big step in the social and technological development of China.
Sun Xianzhong, member of the National People’s Congress states in an interview released for the People’s Daily that China has compiled the Civil Code in the 21st century. The China of the 21st century has 5,000 years of inheritance and transmission of its civilization, it also has the characteristics of the industrial and digital era. Therefore the Chinese Civil Code expresses the real circumstances of the country, represents the context of the present society and the state of the socio-economic development of China, it absorbs the essence of traditional culture (the value of socialism is assimilated into the content and concrete system of the civil code) and respond to the needs of the industrial age. For example, as a result of the rapid development of the internet, a large amount of new circumstances and new problems have emerged such as internet civil liability, online virtual property protection, big data protection etc. Some of the essential elements of the Civil Code with “Chinese characteristic” focus on promoting the virtue of Chinese tradition, strengthening awareness of rules, intensifying ethical limits, supporting the contractual spirit, defending public order and good morals (Cardillo,2018). These aspects underlying the leading role of the Chinese Communist Party (Article 1 of the Constitution and Article 3 of the Law on Legislation) not only in inspiring the whole Chinese legislative activity but also the political-legal committees, present at all levels of the organization of the state, play a central role in ensuring social stability and harmonization between law and politics (Cardillo, 2021).
The Chinese civil code perfectly embodies traditional values and modern needs and great importance is given to the topic of sustainability. Sustainable development is often presented as an intersection between the environment, society and economy, which are perceived not as separate but as connected entities. The PRC has started to put much more effort into sustainable development and protection of the environment. As a result, Chinese civil law has begun to pay more attention to ecological problems as well as promoting the “Green Principle”, which allows the protection of the environment through civil law (Szpotakowski, 2020). With the increasingly serious environmental crisis, the Chinese government has put forward the construction strategy of ecological civilization. The strategy of ecological civilization requires paying attention to the environment and ecological rights and interests, which brings new challenges to the traditional legal system. The goal of ecological civilization construction calls for the ecological change of the legal system and law (Chungang, 2020). The function of Green Principle (Book VII; Chapter VII) are presented as below:
1) Implementing the ideal of green development in civil law and harmonizing the economic development and environmental protection emphasizing the concept of ecological civilization.
2) Embodying the value of ecological security and coordinating the relationship between transaction security and ecological security in the civil law; ecological security involves the health and integrity of ecosystems, and it reflects the protection level of human being’s production, life and health from the damage to ecosystem and environmental pollution (Li, 2018).
From several points of view, a unified civil code is an important step for China. From a political one, it marks the development of a ruling class leading to the same Western perspectives. From a legal one, it marks the maturity of a modern legal science born in the late 1970s. The promulgation of a Civil Code gives China global dignity among the system of legal families (Cardillo, 2020).
The Chinese civil code is made up of 1260 articles organized in 7 books: zongze 总则 (General Provisions); wuquan 物权 (Real Rights); hetong 合同 (Contracts); rengequan 人格权 (Personality Rights); hunyinjiating 婚姻家庭 (Marriage and Family); jicheng 继承 (Succession); qinquan zeren 侵权责任 (Tort Liability) (Lawinfochina, 2021). Chinese civil code is based on the civil law (deriving from Roman law) not on the common law (typical of Anglo-Saxon countries); and among the many juridical models characterizing the civil law family, the Japanese-German model was chosen (Nava, 2019). But several theorists and scholars have been debating about the topic before they reach a unanimous agreement (Toti, 2020). Chinese civil law is therefore characterized by a strong hybridization; it is structured on the civil law but has a liberal and pragmatic approach typical of the common law. In 2020 Mondo Cinese magazine (entirely dedicated to Chinese law) you can read: “base on civil law, use common law”. The new Civil Code is a result of codifying individual single acts, such as the Contracts Act in 1999 and the Property Rights Act in 2007 (Zhang, 2021). Their codification is the process of editing, arranging and systematizing scattered precedents or laws (Wang, 2021).
The process of codification of the Chinese civil code began years ago. The Qing dynasty promoted the first project of codification of civil law. This project never entered into force, but nevertheless it represented a fundamental working basis for the subsequent codification work (inspired by the Japanese-German model, the code conveying the language and taxonomies of the civil law world into Chinese law). The imperial project was followed by other attempts of codification such as during the period of the nationalist government of the Guomindang which in 1929 approved the first civil code of modern China. After the founding of the People's Republic of China and the transfer of the Guomindang code to the Chinese Republic of Taiwan (Timoteo, 2020). In 1949, when the People’s Republic of China was founded, the Civil Code of the Republic of China (“ROC”) was abolished along with other codes and laws of the “ROC”. Massive nationalization of private ownership and the use of central planning to replace a private market took place in the 1950s. Since then, private ownership of means of production was eliminated. When private ownership lost its legitimacy, it became hard to justify the existence of property law and tort law. Nevertheless, contracts and contract law could still exist to regulate the contractual dealings between government agencies and state-owned enterprises (“SOEs”). Contracts were only allowed between government agencies and SOEs, and for the sole purpose of implementing the state economic policies and directives. As a result, no official law (neither statutes nor case law) dealing with private law was in place until the economic reform at the end of the 1970s (Jiang, 2020).
It was only with the arrival of Deng Xiaoping that a legal change took place. Legislative activity resumed immediately hand in hand with university training and the teaching of law (Nava, 2019). In 1978, the Open up Reform promoted by Deng Xiaoping let China open to the rest of the world, therefore a legal instrument was necessary to face this challenge. Reforms, single acts, openings and adaptation of the Chinese legal system to international standards and practices came into effect. Since 1979 legislation follows the economic trend, this means that new laws were enacted according to economic needs, the joint ventures (Sino-foreign enterprises) are an example. Here are a series of the most important enacted laws: Patents and Trademarks Laws (1984) (Cardillo, 2020); Contract Law (1999); Real Rights Law (2007). These regulations made up the legislation framework of China's private law during the reform period. The leadership of Xi Jinping and Li Keqiang completed the political project started some time ago, thus the resolution on Central Issues for the Development of a Government of the country and General Provisions of the Chinese Civil Law were approved respectively in 2014 and 2017 (Timoteo, 2020).
The promulgation of the “Civil Code of the People's Republic of China” in 2020 has caught the attention of the entire jurisprudence circle, it is an inevitable development of the rule of law and a reality required by current national conditions. The Civil Code of socialist nature, conforms to the interests and wishes of the people, and conforms to the requirements of the development of the times. The legal system is not only a normative system, but also a value system. (Wang, 2021).
Alice Cottone, born in Modica (Sicily), is a twenty-five year old, passionate student about Chinese language and culture. She graduated in 2020 at University of Rome La Sapienza and got a double-degree in Chinese language and Culture in 2018 in Beijing. Now she is attending a specialized course in “Foreign trade and internationalization of company” at Tor Vergata University of Rome. You can find her on Instagram, Facebook, Linkedin and WeChat: alicecott1
The opinions expressed here are those of the writers and do not represent the views of European Guanxi.
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Cardillo, I., 2018. La compilazione del codice civile come espressione della contemporaneità e del carattere del popolo [online]. Istituto di diritto cinese. Available from: https://dirittocinese.com/2018/04/18/la-compilazione-del-codice-civile-come-espressione-della-contemporaneita-e-del-carattere-del-popolo/
Cardillo, I., 2019. Esprimere il “carattere del popolo” è una priorità della compilazione del codice civile cinese [online]. Istituto di diritto cinese. Available from: https://dirittocinese.com/2019/12/01/esprimere-il-carattere-del-popolo-e-una-priorita-della-compilazione-del-codice-civile-cinese/ [accessed 11 June 2021].
Cardillo, I., 2020. Il primo Codice Civile unitario in Cina: una tappa importante lungo il percorso di modernizzazione del sistema giuridico [online]. Istiuto di diritto cinese. Available from: https://dirittocinese.com/2020/05/28/il-primo-codice-civile-unitario-in-cina-una-tappa-importante-lungo-il-percorso-di-modernizzazione-del-sistema-giuridico/
Cardillo, I., 2021. La legislazione cinese e il ruolo della Suprema Corte del Popolo [Kindle version]. In Fondazione Italia Cina, ed. Mondo Cinese n 167. Milano: Brioschi editore, pp. 81-99. [accessed 1 May 2021]
Chungang, M., 2020. Construction and Improvement of Civil Code from the Perspective of Ecology. Journal of Scientific Research and Reports [online], 26(4). Available from: https://doi.org/10.9734/jsrr/2020/v26i430246 [accessed: 2 August 2021]
Cinalex, 2020. Interpretazione della Corte Suprema del Popolo riguardo al Codice Civile cinese in materia di diritto di famiglia [online]. Available from: http://www.cinalex.it/blog/p/interpretazioni-della-corte-suprema-del-popolo-riguardo-al-codice-civile-cinese-in-materia-di-diritto-di-famiglia [accessed 14 June 2021]
Cinalex, 2021. Interpretazioni della Corte Suprema del Popolo riguardo al Codice Civile cinese [online]. Available from: http://www.cinalex.it/blog/p/interpretazioni-della-corte-suprema-del-popolo-riguardo-al-codice-civile-cinese [accessed 14 June 2021]
Jiang, H., 2020. The Making of a Civil Code in China: Promises and Perils of a New Civil Law. 95 Tulane Law Review 777 [online]. Available from: https://ssrn.com/abstract=3740658 or http://dx.doi.org/10.2139/ssrn.3740658 [accessed 6 August 2021]
Li, X., 2018. The Function and Practice of the Green Principle of Chinese Civil Code. Правовое регулирование общественных отношений на земле и в космическом пространстве [online]. Available from: http://repo.ssau.ru/bitstream/PRAVOVOE-REGULIROVANIE-OBShESTVENNYH-OTNOShENII/The-Function-and-Practice-of-the-Green-Principle-of-Chinese-Civil-Code-72655/1/ilovepdf_com-183-187.pdf [accessed: 29 July 2021]
Mingkang, H., 2021. Were Women “Free” to Divorce in China: The Impact of the Civil Code of the Republic of China Family on Divorce Disputes, 1929-1949. International Journal of Social Science and Humanity [online], Vol. 11, No. 3. Available from: http://www.ijssh.org/vol11/1045-EB3003.pdf [accessed 1 July 2021]
Nava, A.M., 2019. La modernizzazione del sistema giuridico cinese: dalla caduta della dinastia Qing al codice civile cinese [online]. China files. Available from: https://www.china-files.com/la-modernizzazione-del-sistema-giuridico-cinese-dalla-caduta-della-dinastia-qing-al-codice-civile-cinese/ [accessed 1 April 2021]
Novella Rossi, M., 2021. Il primo codice civile, una normativa con “caratteristiche cinesi” [online]. China Files. Available from: https://www.china-files.com/il-primo-codice-civile-una-normativa-con-caratteristiche-cinesi/ [accessed 5 April 2021]
Qi, P., Cui, S., 2021. The legal construction of personal information protection and privacy under the Chinese Civil Code. Computer Law & Security Review [online], vol. 41. Available from: https://www.sciencedirect.com/science/article/pii/S0267364921000339 [accessed 18 August 2021]
Szpotakowski, I., 2020. The New Chinese Civil Code and Its Contribution to Sustainable Development. TRANSFORMACJE PRAWA PRYWATNEGO, ISSN 1641–1609 [online]. Available from: https://ssrn.com/abstract=3824602 [accessed 1 July 2021]
Timoteo, M., 2020. Il Codice Civile in Cina: oltre i legal transplants? [Kinde version]. In Fondazione Italia Cina, ed. Mondo Cinese n 167. Milano: Brioschi editore, pp. 17-34. [accessed 30 April 2021]
Toti, E., 2020. Diritto cinese dei contratti e sistema giuridico romanistico tra legge e dottrina [online]. Roma: ROMATRE-PRESS. Available from: http://romatrepress.uniroma3.it/libro/diritto-cinese-dei-contratti-e-sistema-giuridico-romanistico-tra-legge-e-dottrina/ [accessed 20 April 2021]
Wang, X., 2021. minfa dian beijing xia zhongguo fa lixue de er yuan fazhan 民法典背景下中国法理学的二元发展The dual development of Chinese jurisprudence in the context of the Civil Code [online]. zhongguo kuangye daxue xuebao - shehui kexue ban中国矿业大学学报 - 社会科学版Journal of China University of Mining & Technology - Social Sciences. Available from: http://kns.cnki.net/kcms/detail/32.1593.C.20210610.1533.002.html [accessed 23 July 2021]
Zhang, J., 2021. Recent developments in the law of secured transactions of movables under the new Chinese Civil Code. Uniform Law Review [online]. Oxford University Press on behalf of Unidroit. Available from: https://academic.oup.com/ulr/advance-article/doi/10.1093/ulr/unab008/6298463 [accessed 16 June 2021]