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The Civil Code of China (PRC)—A Basic Introduction to its History, Purpose, and Effect

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Kavin Mi Yang



Context

The ‘civil code of PRC’ is most famous for it being the first ‘code’ since the founding of the PRC (founded in 1949). Before this, there existed the ‘civil code of Republic of China 1929’ (before the PRC was found), which is said to have ‘more than 95% of the content to be directly transplanted from western law’[1]. The NPC standing committee of the PRC started the process of drafting the ‘civil code of PRC’ as early as 1954 but it was not until May 2020 that the drafting was finished. The reasons for this delayed drafting varied from political issues (in the early period) such as the cultural revolution (indicating an immature, conflicting political environment), to the immature legal system and economic market in the later period[2] (making the creation of a unified code difficult). Thus, the production of the civil code marks the evolution of the Chinese legal, political and social system[3].


Purpose and Effect

Before the drafting of the civil code, most of the civil law was made under the principle of the Constitution, for example, the principle of a ‘planned economy’ greatly affected the company law and contract law. The coding of civil law shows an attempt to clarify the dividing between the civil law and the constitution[4], to separate public and private law, therefore showcasing a transition to a more liberal form of Chinese government that leaves the private law sector relatively untouched[5].


The previous lack of a civil code meant that there were numerous, sometimes arbitrary, sources of law. The civil code harmonized these sources, for example for the transfer of the collateral, there are 4 relevant laws, while the Real Rights Law 2007 stipulates that there must be a consent of the mortgagee before the transfer, the Interpretation of the Guarantee Law 2000 stipulates that there can be transfer without consent, but the consignee who has obtained the ownership of the property may pay all the debts in the debtor’s place. The civil code unifies these 4 ‘rules’ and stipulates that there must be consent for the transfer. For transfer without consent, the mortgagee can still obtain the property. The civil code also clarifies terms on a lease agreement as well as what constitutes a contract and more. This codification and a single legal source for civil law increased legal certainty in that the law is now easily accessible and understandable for the public, who are now also aware of what law is currently in effect and what law the court will use.


The civil code, compared with previous laws, give more focus on social problems and concerns. For example, in Art 1077, a new concept of ‘cooling-off period’ during the process of divorce was applied, which states that the divorce may be rebutted if any party of the marriage changes their mind. This tackles the social problem of increased divorce rate since 2007. It also clarifies (art 16 and art 1155) that an unborn child has the right of inheritance, where the succession right of the unborn child had previously been a vague area of law (giving rise to the social problem). It extends the protection of individual property to the virtual property such as virtual currency and online game accounts (art 127). It also takes into account of customs, which is an ‘important part of Chinese law since the Warring States Period (475-221 BC)’[6], for example in art 339, 340, 341, the civil code recognizes a division between ownership right, contract right and operating right to encourage outsourcing of land in accordance with the social trend of urbanization and young people moving to the city, leaving rural land unmanaged.


Conclusion

The Civil code of PRC is a milestone of modernization of Chinese legal, social and political system. It signals a judicial and perhaps a political attempt to change and adapt to the changing social and economic environment by creating and codifying Chinese law, which is only possible under a developed, mature social and economic environment.



 

photo: Yu Han Huang, ‘The History of the Civil Code’ (Chinanews.com 2020) https://www.chinanews.com/ll/2020/05-26/9195504.shtml, accessed 20th Nov 2020

*cover photo of the codebook; the Civil code is passed on the 28th May 2020 by the 13th National People’s Congress. Being an epoch-making modernization of the legal system, it will abolish all the previous civil law and will act as the only source of Chinese civil law


[1]Jing Bing Li, ‘The Positive Significance and Actual Obstacles of Enactment of China's Civil Code’ (1992) 5 Science of Law, 7 [2] Yu Han Huang, ‘The History of the Civil Code’ (Chinanews.com 2020) https://www.chinanews.com/ll/2020/05-26/9195504.shtml, accessed 20th Nov 2020 [3]Fei Hong Xie, ‘The 5 purposes of the Civil Code’ [2020] 4 Journal of the Party School [4]Wan Yi Zhao, ‘On the Basic Ideas Systematic Structure of the Making of China's Civil Code’ (2006) 1 Science of Law, 55 [5]Zhong Xian Sun, ‘Why is the Civil Code so important’ (XinHuanews.com 2020) http://iolaw.cssn.cn/zxzp/202005/t20200522_5133134.shtml, accessed 21st Nov 2020 [6] Jiang Yu, ‘The customs’ effect to the Civil Code’(2005) 9 Private Law Reviews, 2

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