This blog is part of a series on the new Chinese Civil Code. Part (2) summarizes the debate on whether to include a general part in the future civil code. A previous blog was published on the legal history of Chinese private law. In subsequent blogs, other points of debate regarding the development of a 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.
The general part of the Civil Code is rooted in the Pandectist doctrine. The previous Civil Codes (1911 and 1931) contained a general part, but the General Principles of Civil Law (1986) did not. Therefore, it is debatable whether a general part is necessary and if it is included, what it should contain.
Necessity of a General Part
Some scholars hold that a general part is not necessary in a civil code. In their view, a general part cannot be applied equally to all sub-parts (e.g., family law), thus it lacks universality. The sub-parts of a civil code differ inherently, so there will be many exceptions to the general part. This may frustrate the aim of simplicity, which should be the main function of the general part. Besides, the general part normally includes articles on legal subjects (natural and legal persons) and legal conduct (real and personal conduct). Since Chinese Property Law does not recognize real conduct (the delivery of a good is a factual conduct), and personal conduct is mainly regulated by contract law, there is no need to prescribe the concept of legal conduct in the general part. The general part could therefore only cover legal subjects, thereby becoming the law on legal subjects. The French and Dutch Civil Codes are examples of this.
In contrast, opposing scholars claim that the general part can simplify a civil code through abstraction, systemization and logicalization; without the general part, a civil code would deteriorate into a mechanic and loose combination of single laws. In addition to this, the general part is also required through the incorporation of civil and commercial law. It serves as an alternative for the general part of commercial law which is now missing. Without it, we still would have to establish a general part for commercial law. Moreover, the general part safeguards the flexibility of a civil code, making it more adaptable to changes in society. Lastly, the general part provides a chance to present the spirit and ideas behind private law, such as equality and autonomy.
At present, the dominant notion is that a general part is necessary. The academic draft of the General Part was published on 20 April 2015. Therefore, it is likely that the future civil code will indeed comprise a general part.
Layout of general part
The general part will normally include four sections: subject, object, conduct and liability.
- The subject consists of natural persons, legal persons and partnerships. There are not many debates about this issue.
- As to the object, some scholars hold that there is no unitary concept of object in civil law, but only specific objects of different rights. The object of real rights is different from that of personal rights and intellectual property rights. Therefore, we should not prescribe object in the general part. Opponents claim that the object serves as a corresponding concept of the subject, thus it should be prescribed in the general part in a comprehensive and open manner.
- Regarding legal conduct, some hold that a definition is not necessary, because property law does not recognize real conduct. However, the concept of legal conduct is included in the General Principles of Civil Law (1986) and is commonly used in academic research. Abolition of it will violate the legal custom arising from years of using it and would therefore cause much inconvenience.
- The General Principles of Civil Law (1986) has an independent chapter on liability, including contractual and tort liability. It is the result of the triple-layers doctrine: right-duty-liability. Right corresponds to duty, and liability is the result of violation of duty. However, the opposing opinion claims that since liability is in essence a personal right, there is no independent position for liability in private law. Liability belongs to the law of obligation. Therefore, whether liability should be prescribed in the general part becomes a problem.
The academic draft of the General Part includes the following sections: Principles, Natural Persons, Legal Persons, Other Entities, Objects (things, securities and other objects), Legal Conducts, Agency, Time Limit, Exercise and Protection of Rights, and Supplement.
The next blog in the series will focus on Personality law.