China Civil Code: coming soon (5) - Tort Liability 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 independence of tort law.
This blog is part of a series on the new Chinese Civil Code. This final part (5) will give more background information on Tort Law. Previous blogs were published on (1) the legal history of Chinese private law, (2) the introduction of a General part in the New Civil Code, (3) Personality Rights and (4) General part of obligation 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.
Traditional civil law incorporates tort law in the system of obligation law. However, influenced by common law, the future Chinese civil code may leave an independent chapter for tort law, which runs counter to the Pandectist doctrine.
Those who disapprove of this approach claim that tort law should not be an independent chapter. (1) Like other obligational rights, the claim arising from torts is also a kind of personal right, forming a contrast with proprietary rights. Therefore, an independent chapter on tort law will ruin the systematical coherence of civil law. (2) Traditional civil codes, such as the French Civil Code and the German Civil Code, all incorporate tort law as a sub-part of the law on obligations. The unitary approach is more in line with the Pandectist doctrine. The independence of tort law deviates from the tradition of civil doctrine.
In the opinion of these scholars, tort law should constitute an independent chapter.
- Tort law is significantly different from contract law: the former concerns the protection rather than the creation of wealth, thus it does not take the party autonomy as its tenet. This is why the differences between contract law and tort law exceed the similarities, so it is impossible to integrate them in one chapter.
- The independence of tort law will not ruin the systematical coherence of civil law, since the general part of civil law is devised on the fundamental line of reasoning: subject-object-conduct-rights protection. Tort law, as the last chapter, constitutes the regime of protection of rights.
- Tort law not only provides monetary damages for victims, but also other forms of protection, such as restoration, cessation of infringement and apology (the last two already exist in China). These forms of liability are not compatible with other obligational rights. Therefore, independence would be better for the protection of victims.
- From the perspective of comparative law, the Dutch Civil Code has a separate part on tort law (Chapter 6) and the future European Civil Code will likely have an independent chapter on tort law (cf. DCFR). Its independence can be seen as a result of the interaction between civil and common law.
The dominant view is that tort law should be an independent chapter. In 2010, Chinese Tort Liability Law came into force. It will act as a model for the major part of the chapter on tort law in the future civil code.
(1) The official edition
The latest official draft of the Civil Code was published in 2002. It is a loose combination of single laws, therefore invoking much criticism. The draft includes nine chapters: General Part, Property Law, Contract Law, Personality Law, Marriage Law, Adoption Law, Inheritance Law, Tort Law and Law about Application of Law to Foreign Legal Relationships.
(2) The academic edition
Next to the official draft, two academic drafts have been proposed by scholars. One has seven chapters (General Part, Property Law, General Part of Obligation Law, Contract Law, Tort Law, Family Law and Inheritance Law) and the other has eight chapters (General Part, Personality Law, Marriage and Family Law, Inheritance Law, Property Law, General Part of Obligation Law, Contract Law and Tort Law). Most of the points of debate as highlighted in the blogs are reflected in the differences between the two drafts. For more information, please consult lawinnovation.com or law-lib.com (unfortunately, all content is in Chinese).
This series of blogs has demonstrated that creating a new civil code is an enormous task and many important choices have to be made regarding the content. Nevertheless, the code is expected to be finished and enter into force in 2020. It is still unclear whether the code will be introduced as a whole or whether the General Part will first come into force. Meanwhile, any input or comments regarding its content is much needed, especially considering that this code will affect nearly 1.4 billion people which is almost twice the population of Europe. Contrary to the European Civil Code, China can genuinely say: Coming soon!