China Civil Code: coming soon (4) - General Part of Obligation Law
China is now making its own civil code. As a country with a population of more than 1.3 billion, what kind of civil code will it have? This blog concerns the necessity of the general part of obligation law.
This blog is part of a series on the new Chinese Civil Code. Part (4) will give more background information on the General Part of Obligation Law. Previous blogs were published on (1) the legal history of Chinese private law, (2) the ntroduction of a General part in the new Civil Code and (3) Personality Rights. The last blog (5), will deal with Tort Law. 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.
Obligation law constitutes an important part of the civil code. It has the largest number of articles and the most complicated structure. At present, the debate regarding the structure of obligation law is focused on two questions: 1) the necessity of a general part and 2) the independence of tort law. In this section, we focus on the first question, and the second one will be discussed in the next blog.
Those against claim that there is no need to have a general part of obligation law and for the following reasons:
- If obligation law has a general part, there will be significant overlap with Contract Law (1999) and Tort Law (2010), each of which are autonomous systems.
- The general part takes contract law as the basis. However, there are many differences between the tort law and contract law. This will lead to many exceptions to the general part. Therefore, it remains questionable whether a general part can simplify obligation law.
- Some, inspired by the Dutch Civil Code, hold that we should introduce a general part on patrimonial law, which covers property law, contract law and intellectual property law. Following this approach, there is no need to have a general part of obligation law.
- If tort law is separated from obligation law, the general part becomes less valuable. The general provisions of contract law can be applied to unjust enrichment and negotiorum gestio by analogy. These notions are now included in the General Principles of Civil Law (1986).
Those in favour hold that the general part of obligation law is necessary.
- If there is no general part, the concept of obligational rights will disappear, merely leaving the right based on contracts, the right based on torts, etc. In this situation, the civil code will take the style of common law.
- For the purpose of simplicity, openness and systematicness, there should be a general part to govern the four branches (contract, tort, unjust enrichment and negotiorum gestio). The four obligational rights share the same legal effect: the right to claim. Therefore, a general part is possible as well as desirable.
- When Contract Law (1999) was drawn up, its general part was made as detailed and comprehensive as possible because there was no general part of obligation law. Now that we are establishing a civil code, some terms in the general part of Contract Law should return to that of obligation law.
- Even tort liability law will be separated from obligation law as an independent part, we cannot deny that the right arising from torts is not obligational. The general part is also necessary since contract law, unjust enrichment, negotiorum gestio, and unilateral promises remain in obligation law.
The dominant opinion is that the law of obligations should have a general part. Its structure depends on the extent to which the general part of Contract Law should be amended. In general, it may include the following parts: the effect of obligation, the cause of obligation, the object of obligation, the preservation of obligation, the alteration of obligation and the extinction of obligation.