This blog is part of a series on the new Chinese Civil Code. Part (1) provides a general introduction on the legal history of the Civil Code and current private law in China. In subsequent blogs the development and debate regarding the new Civil Code will be discussed. The aim of the blogs, besides informing interested parties and scholars, is to get feedback on the relevant issues so please feel free to leave your comments.
On 23rd October 2014, the Decision of the Communist Party and Central Government of China on Several Major Issues of Promoting the Rule of Law was passed and announced to the public. The Decision included the aim of “…improving the legal institution for the market economy and making a civil code”. The Decision kicked off the establishment of a civil code for China. After publication of the Decision, a fierce debate about the future civil code ensued. A Chinese Civil Code is on the way!
Ancient China was geared towards criminal law. The first civil code, which was based on the German Civil Code, came into existence in 1911. However, the Code (1911) was never enforced due to the 1911 Revolution (which ended the Qing dynasty). From 1929 onwards, the KMT government started to develop a new civil code. This project was completed in 1931. The Civil Code (1931) had five parts and unified civil and commercial law. After the Liberation War (which took place between 1945-1949), the code was abolished in Mainland China, but continued to be effective within Taiwan.
In Mainland China, there were two code-making activities (1954-1956 and 1962-1964) before the policy of Reform and Opening (1978). However, both failed in the end. After 1978, the National People's Congress Standing Committee set up a group to establish a civil code, and in 1986 the General Principles of the Civil Law were passed. The statute includes nine parts with only 156 articles and is not actually a civil code, but rather a collection of principles of civil law. According to the chairman of the Standing Committee, the reason for suspending the civil code was expressed as follows: “what a civil code involves is very complicated and comprehensive, we do not have sufficient experiences since Reform and Opening merely started.” The statute is still in force at present and still serves as a basis for the future civil code. Subsequently, China started a third project in 1998, but failed to finish it due to a lack of sufficient preparation.
After the General Principles of Civil Law had been introduced, China enacted a series of single laws: Contract Law (1999), Property Law (2007), Tort Law (2010), and Law on the Choice of Law for Foreign-Related Legal Relations (2010). These single laws constitute the main body of private law as it now stands and form the basis for the future civil code. It is important to note that due to the influence of the Soviet Union, Marriage Law had already been established in 1950, independent of the civil code. Inheritance Law came into force in 1985.
In making a civil code, the main issue for debate is its structure. The content of current Chinese private law is embodied in the aforementioned single statues, thus the critical question is how to combine these into one code in a scientific manner. The debates on structure focus on the following main topics: the necessity of a General Part, the independence of Personality Law, the necessity of a General Part of Obligation Law, and the position of Tort Liability Law. In the following blogs, these issues will be discussed.