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CHINA LEGAL SCIENCE 2020年第4期 |民法典分编的编纂
日期:20-07-30 来源: 作者:zzs

THE COMPILATION OF SPECIFIC LAWS OF THE CIVIL CODE


Zhang Mingqi


TABLE OF CONTENTS



INTRODUCTION
I. PROCESS OF COMPILING SPECIFIC LAWS OF THE CIVIL CODE
A. Implementation of the ‘Second Step’ of the Compilation of the Civil Code
B. Legislation in a Scientific and Democratic Way with Social Wisdom and Consensus
II. BASIS OF ENACTING THE CIVIL CODE
A. Solid Legislative Basis Provided by the Relatively Integrated System of Civil Laws and Regulations
B. Rich and Precious Experience Gained over the Years in the Promotion of the Rule of Law
C.Solid Theoretical Support Provided by the Fruitful Achievements in the Research of the Science of Civil Law
D. Solid Social Basis Laid by Strengthening the Public Consciousness of the Rule of Civil Law
III. GUIDING THOUGHTS, FUNDAMENTAL PRINCIPLES AND TECHNICAL APPROACHES FOR THE COMPILATION OF THE CIVIL CODE
A. Guiding Thoughts and Fundamental Principles of the Compilation of the Civil Code
B. Technical Approaches of Compiling the Civil Code
IV. HIGHLIGHTS AND INNOVATIONS IN SPECIFIC LAWS OF THE CIVIL CODE
A. The Part of Property Rights
B. The Part of Contracts
C. The Part of Personality Rights
D. The Part of Marriage and Family
E. The Part of Succession
F. The Part of Tort Liability
CONCLUSION



The compilation of the Civil Code is a major legislative task proposed at the Fourth Plenary Session of the 18th CPC Central Committee, and it is a major construction deployment of the rule of law made by the CPC Central Committee with Comrade Xi Jinping as the core. The successful promulgation of the Civil Code is on the solid bases of economy, the rule of law, the social consensus, and the political support. Under the guidance of such basic principles as persisting in the correct political direction, committing to a people-centered approach, keeping national conditions and reality as the basis, and upholding the state governance under the rule of law and the rule of virtue, and as the second step in the ‘two-step’ compilation of the Civil Code, the legislation of each part of the Civil Code systematically summarizes the experience of legislation, judicial practice and theoretical research in the civil law field in China, responds to the development of the new era and the needs of the people, makes comprehensive complement and improvement to the systems such as property right protection, fair trade, personality right protection, marriage, family and inheritance, and tort relief, which forms the Civil Code with Chinese characteristics, embodying the characteristics of the times, reflecting the people’s will with scientific rules, rigorous structure, reasonable norms, and consistent contents together with the General Provisions of the Civil Law.



INTRODUCTION



The compilation of the Civil Code of the People’s Republic of China (hereinafter  referred to as the Civil Code) is a major legislative task proposed at the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China (CPC) and a systematic project. The Standing Committee of the 12th National People’s  Congress (NPC) included ‘the compilation of the Civil Code’ into its legislative planning and presented the idea of ‘two-step’ compilation. On March 15, 2017, the General Principles of the Civil Law was deliberated and approved by the Fifth Session of the 12th NPC and promulgated, which finished the first step of the compilation of the Civil Code; on such basis, the Legislative Affairs Commission of the NPC Standing Committee, together with the other five units participating in the compilation of the Civil Code including the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Justice, Chinese Academy of Social Sciences and China Law Society, made every effort to speed up the compilation of specific laws of the Civil Code. On May 28, 2020, the Civil Code was approved at the Third Session of the 13th NPC, which declared the successful completion of the task of the Civil Code compilation.



I. PROCESS OF COMPILING SPECIFIC LAWS OF THE CIVIL CODE




A. Implementation of the ‘Second Step’ of the Compilation of the Civil Code


After the promulgation of the General Principles of the Civil Law, the Legislative Affairs Commission of the NPC Standing Committee and the other units participating in the compilation of the Civil Code systematically sorted out and studied the opinions put forward by those concerned over the years, on the bases of in-depth investigation and research related to the compilation, comparative studies, the views of all sides and the existing civil laws, and in light of the reality of the economic and social development in China, formulated the drafts of six specific laws of the Civil Code including the parts of property rights, contracts, personality rights, marriage and family, succession and tort liability and submitted them as a whole for the first time on August 27, 2018 to the Fifth Session of the 13th NPC Standing Committee for deliberation.


The 13th NPC Standing Committee read for deliberation the specific laws of the Civil Code separately: read for deliberation for the second time the parts of tort liability and contract, the parts of real rights and personality rights, the parts of succession and marriage and family respectively at the 7th Session in December, 2018, at the 10th Session in April, 2019, and at the 11th Session in June, 2019; read for deliberation for the third time the parts of tort liability, personality rights, and marriage and family respectively at the 12th Session in August, 2019 and at the 14th Session in October, 2019. At the end of November, 2019, the NPC Constitution and Law Committee held a meeting to read for deliberation the drafts of specific laws of the Civil Code in light of the deliberation opinions of the members of the Standing Committee and the opinions of all sides, complied the General Principles of the Civil Law which had been promulgated and implemented and included into the drafts, and rearranged the numbers of the articles, and formulated the Civil Code (Draft). The relevant responsible persons from the units participating in the compilation of the Civil Code were also present at the meeting.


The Legislative Affairs Commission of the NPC Standing Committee revised and improved the drafts many times and, upon the decision of the Council of Chairmen, submitted them as a whole to the 15th Session of the 13th NPC Standing Committee for deliberation in December, 2019. After deliberation, the NPC Standing Committee decided to submit the draft of the Civil Code to the NPC for deliberation. After the NPC Standing Committee deliberated the draft of the Civil Code, the General Office of the NPC Standing Committee distributed the printed draft to the delegates of the 13th NPC for opinions. Meanwhile, the Legislative Affairs Commission sent letters to the relevant government agencies, local people’s congresses and grassroots points of contact for legislation to solicit their opinions, and uploaded the draft onto the website of the NPC to solicit the public opinions. In April, 2020, the Constitution and Law Committee held a meeting to further improve the draft of the Civil Code in light of the deliberation opinions of the NPC Standing Committee, the opinions of the delegates in the study and discussion of the draft, and the opinions of all other parties, and formulated the Civil Code (Draft) to be submitted to the Third Session of the 13th NPC for deliberation. There are seven parts in the draft Civil Code, which, in order, are General Provisions, Property Rights, Contracts, Personality Rights, Marriage and Family, Succession, Tort Liability, and Supplementary Provisions, with a total amount of 1,260 articles. In order to make further preparations for the deliberation of the draft Civil Code by the NPC, on April 29, the Legislative Affairs Commission distributed the draft Civil Code again to the delegates across the country to solicit their opinions. On May 28, 2020, after the deliberation by the delegates at the Third Session of the 13th NPC, the Civil Code was passed. Consequently, we have a Civil Code of our own at last.



B. Legislation in a Scientific and Democratic Way with Social Wisdom and Consensus



One of the prominent features of the compilation of the Civil Code is the legislation in a scientific and democratic way and in accordance with the laws as well as the legislation open to the public with experts and scholars and the masses actively participating in the whole process of legislation, which reflects both the consensus of all walks of the society on the compilation of the Civil Code and the contribution of their wisdom to the compilation of the Civil Code. During the compilation and deliberation, the legislative body held regular meetings of the coordinating group for the compilation of the Civil Code, many demonstration meetings, hearings and seminars to which jurists in different legal fields, and people from the departments of legislation and law enforcement were invited; heard opinions from the relevant departments of our central government and experts and scholars; learned about the situations in reality and listened to all the sides by conducting investigations and researches across the country and entrusting the Center for Social Opinion Polls of the National Bureau of Statistics to conduct investigations. All the deliberated parts of the draft Civil Code were publicized on the website of the NPC for opinions and suggestions from all walks of the society. From June, 2016 when the draft of the General Principles of the Civil Law was submitted to the NPC Standing Committee for deliberation to December, 2019 when the draft Civil Code was made public as a whole for the first time, the draft Civil Code was publicized ten times on the website. Over 425,600 people put forward more than 1,020,000 pieces of opinions and suggestions, which was rare in the legislative history.


It has been a dream and wish of jurists of several generations since the foundation of New China to compile China’s own civil code. As a national representative body of the legal circle and the law society, China Law Society attached great importance to such a legislative task and set up a special leading group of China Law Society for the compilation of the Civil Code and decided that Zhang Mingqi, Member of the Party Leading Group and Vice President of China Law Society, Member of the Standing Committee and Deputy Chairman of the Law Committee of the 12th NPC, was the head of the special leading group; Wang Liming, Deputy President of China Law Society, Chairman of the Civil Law Institute, and Vice President of Renmin University of China, was the assistant leader of the leading group; over 20 well-known jurists including Zhang Xinbao in the fields of the Civil Law, the Commercial Law, the Economic Law, the Administrative Law, the Law of Society, the Comparative Law and so on were members of the special leading group. Groups of research on laws of property, contracts, marriage and family, succession, and tort liability were formed respectively to systematically sort out the existing civil legislation, to point out problems in those laws, and give their advice for improvement. Drafts of specific laws proposed by experts with high-quality were quickly formulated as planned and submitted to the Legislative Affairs Commission of the NPC Standing Committee. After the part of personality rights was decided to be one separate part, the special leading group of China Law Society for the compilation of the Civil Code formulated the expert proposed draft of the part of personality rights in the first place and submitted it to the Legislative Affairs Commission of the NPC Standing Committee. By doing so, China Law Society made significant contributions to the compilation of the Civil Code. During the deliberation of the specific laws, the units participating in the compilation arranged for their leaders in charge and experts and scholars to be present as the ‘working staff’ at each deliberating conference held by the NPC Standing Committee and the NPC Constitution and Law Committee. Professor Zhang Xinbao, Researcher Chen Su were present at all or many of such conferences for deliberation and discussion, provided necessary supportive materials, answered relevant questions concerning legal theories, and offered advice and suggestions directly for the improvement of the compilation of the Civil Code.



II. BASIS OF ENACTING THE CIVIL CODE


The history of the Civil Law in a half century in China is full of ups and downs. Since the adoption of the Draft Civil Law of the Qing Dynasty of 1911 till now, China has undertaken a tortuous and difficult course to finish codifying the Civil Code. Experience and lessons in drafting the Civil Code many times demonstrate that a successful compilation of the Civil Code needs to be based on the guarantee of the solid support of the economy, the rule of law, social consensus, and politics.


The activities of compiling the Civil Code highlight the political determination and resolution of the top policymakers in China. Since the Fourth Plenary Session of the 18th CPC Central Committee made it a major political and legislative task to codify the Civil Code, the CPC Central Committee with Comrade Xi Jinping as the core set a high value on the compilation of the Civil Code and included it into its work agenda. In the process of compiling the Civil Code, General Secretary Xi Jinping hosted three meetings of the Standing Committee of the Political Bureau of the CPC Central Committee respectively in June, 2016, August, 2018 and December, 2019, listening to the report made by the Party Leading Group of the NPC Standing Committee about the compilation of the Civil Code, and giving important instructions for the compilation of the Civil Code, which provided important guidance to the work of codifying the Civil Code. The 12th and 13th NPC Standing Committees attached great importance to this legislative task and made it a key project of legislative work of the NPC Standing Committee for continuous promotion, which reflected the high attention paid by the top organ of the state authority in China to the compilation of the Civil Code. It is the strong and forceful support of the CPC Central Committee that guaranteed the final satisfactory completion of the compilation of the Civil Code.


Since the reform and opening-up of China, the socialist market economy has been basically established, and with the development of the rule of law for over 40 years in China, a relatively integrated system of civil laws and regulations has also been formed, rich experience in promoting the rule of law has been gained, and remarkable theoretical achievements have been made in the development of the civil laws over the years. Especially, with the deepening of the construction and the practice of the rule of law, the civil law ideas have been more and more deeply rooted in the hearts of the public, which lays sound systematic, practical, theoretical and social bases for the compilation of the Civil Code. 



A. Solid Legislative Basis Provided by the Relatively Integrated System of Civil Laws and Regulations



Since the reform and the opening-up of China, with the Law on Chinese-Foreign Equity Joint Ventures of 1979 as the starting point, civil and commercial legislation was constantly enacted in the past 40 years. Until now, more than 30 legally effective civil and commercial laws have been promulgated and put into operation one after another, which constitutes a relatively integrated system of civil laws and regulations. While the series of important civil, commercial, and economic laws enacted one after another by China provide solid legal guarantee for the reform and opening-up and socialist modernization, they also formulate the framework and foundation for the successful compilation of the Civil Code.


1. The General Principles of the Civil Law. — The General Principles of the Civil Law was promulgated in 1986 with 156 articles, including not only the main rules and regulations required by the General Provisions of the Civil Code but also the main contents of specific laws of the Civil Code, which can be regarded as a Civil Code in miniature. Since the promulgation and enforcement of the General Principles of the Civil Law, it has been the fundamental law adjusting civil relations in China. It has made the following three main historical contributions. First, at the earlier stage of the reform and opening-up, it made the planned economy lose its dominant position, and for the first time, specified that ‘civil law mainly adjusted the property relation between subjects with equal status, which was the horizontal relationship involving property or economy’, and established the fundamental principles of equality, voluntariness, honesty, credibility, and so on, which legally guaranteed the smooth proceeding of reform and opening-up. Second, the Chapter of Civil Rights provides and declares in a relatively comprehensive way that the civil subjects are entitled to a wide-range of civil rights including property rights, creditors’ rights, intellectual property rights, and so on. It also emphasizes specially the protection of personality rights such as respect to the personality and reputation of citizens, which highlights the respect to people and is enlightening in that era. From the perspective of the significance of compilation of the Civil Code, such unprecedented provisions lay a tradition basis for the compilation of a separate part of personality rights in China, and further formulates the basic framework of specific laws of the Civil Code of China. Third, the Chapter of Civil Liability establishes a unified and systematic civil liability system by regulating in the same ways the personality rights and different types of civil liabilities including tort liabilities, breach of contract, violation of the right to life, and so on. It establishes basic rules for protecting civil rights and lays the foundations for the construction of the separate system of tort liabilities. It can be said that ‘the adoption of the General Principles of the Civil Law symbolizes the period of improvement and systematization of our civil legislation and lays the foundation and paves the way for the compilation of the Civil Code.’


2. The Contract Law. — The Contract Law promulgated in 1999 ended the situation where the Economic Contract Law, the Foreign Economic Contract Law and the Technical Contract Law were in operation at the same time. It is a relatively integrated contract law, covering various agreements except for those relating to personal relationships such as marriage, adoption and guardianship, and including comprehensive provisions on the form, the contents and the validity of contracts and on liabilities for breach of contract. The Contract Law sticks to the freedom to contract, fully reflects the principle of parties’ autonomy, further sets up the general rules of market transactions, effectively maintains the economic and social orders, further encourages transactions, guarantees and promotes the development of socialist market economy. It should be noted specially that the Contract Law is open and inclusive. It not only fully absorbed the research achievements of the domestic scholars but also included the well-established international contract rules with an open attitude. The openness and inclusiveness of the Contract Law brought forward an advanced law and laid firm foundation for the codification of the Civil Code.


3. The Property Law. — The Property Law was promulgated and implemented in 2007. Compared with other civil laws, the enactment of the Property Law was even more difficult and lasted for 13 years since it was, up to now, the only law deliberated eight times by the NPC and its Standing Committee. The Property Law provides in a comprehensive way the ownership, the usufructuary right, the real right for security, and the system of possession, and regulates in a relatively specific way the ownership of the state-owned properties, the owners’ partitioned ownership of building areas, the right to contractual management of the rural land, the right to use construction land for dwelling houses, and so on, which fundamentally formulates the framework of the system of property rights in China. Especially, it explicitly sets out the principle that ‘the property right of the state, the collective, or the individual or any other right holder shall be protected by the law and shall not be damaged by any entity or individual’, which is significant to maintain the market economic system of China, to protect and promote the people’s fundamental interests, to stimulate the social creativity, and to further deepen the reform and opening-up. In addition, the Property Law establishes the principles of bona fide acquisition and public demonstration, the systems of registration of the real property, requisition of land and compensation for requisition, which plays a positive role in dispute settlement and the best use of properties.


4. The Marriage Law and the Adoption Law. — The marriage and family law of New China began with the Marriage Law promulgated in 1950, it was further improved with the Marriage Law of 1980, and until the 1990s it was developed into a system with the Marriage Law and the Adoption Law as the main laws and the relevant regulations such as the Regulations on Marriage Registration as the supporting and supplementary regulations. 


The Marriage Law of 1980 and that of 2001 were revised and improved to suit and respond to the social development in those years, reflecting that our legislation kept pace with the times. Especially, the Marriage Law of 2001 not only further specifies the fundamental principles of the marriage system in China (such as equality between man and woman, freedom of marriage, etc.), but also includes relatively comprehensive provisions on marriage, spousal relationship, divorce and so on. The Adoption Law promulgated in 1991 (and revised in 1998) mainly regulates the establishment of the adoptive relationship, the validity of adoption, the termination of the adoptive relationship, and so on. It fills in the gaps in regulations on blood relations in the fiction of law in China.


5. The Succession Law. — The Succession Law was promulgated in 1985 and has been in operation for over 30 years until now. It specifies the principle of protecting the right to inherit private property from a civil law perspective and fully embodies ‘the protection of the right of citizens to inherit private property’ provided in article 13 of the Constitution. It also includes relatively comprehensive provisions on testamentary succession, statutory succession, disposition of the estate, and so on, which formulates the framework and lays the foundation for the compilation of the Civil Code.


6. The Tort Liability Law. — Different from the traditional civil law in the civil law system which treats the tortious act as a cause for debt, the Tort Liability Law of China is a separate law of right protection in conformity with the tradition of the General Principles of Civil Law to include a separate chapter of civil liabilities, which is a creation in the civil legislation in China. In the construction of the system, the Tort Liability Law of China includes general provisions on the constitution of tort liability in the first three chapters, and creatively adopts two ways of multiple imputation system and special tortfeasors (Chapter IV is about special provisions on the tortfeasors, and Chapters V to XI respectively provide liabilities for special types of torts such as the liability for motor vehicle traffic accident, product liability, the liability for medical malpractice, and so on), establishing the separate legal system of tort liability with Chinese characteristics. Considering that no consensus was reached in social sectors on problems relating to the protection of personality rights, the overall protection of personality rights is not provided in the Tort Liability Law, which ‘leaves room for the enactment of the law on personality rights in the future.’


The civil and commercial laws enacted since the reform and opening-up have been proved in the implementation over the years to be scientific and rational and suitable to the reality of China. However, with the social and economic development, the existing laws cannot completely satisfy the need of new development in the new era. As a result, it is in urgent need to comprehensively and systematically revise and compile the existing laws enacted at different times in China to eliminate conflicts among them, to sort out the inner links among civil laws and regulations, and to make the civil law in China systematic and comprehensive. The legislative achievements such as the General Principles of the Civil Law, the Property Law, the Contract Law, the Guaranty Law, the Marriage Law, the Adoption Law, the Succession Law, the Tort Liability Law and civil laws and regulations on personality rights just provide solid and firm bases for the compilation of the Civil Code and the improvement of relevant rules and regulations.



B. Rich and Precious Experience Gained over the Years in the Promotion of the Rule of Law



Over the years of promotion of the rule of law in China, rich and precious experience has been gained, which is mainly reflected by the interpretations made by the Supreme People’s Court in accordance with the Constitution and the Organic Law of the People’s Courts on specific issues in the implementation of the civil laws, that is, the judicial interpretations concerning civil law issues. Especially at the earlier stage of the construction of the rule of law, the legislation in China followed the guiding principle of ‘being general rather than detailed’, leaving much room for judicial interpretations to be made and to be applied. Since the 1980s, the Supreme People’s Court has issued overall judicial interpretations on civil laws, including the General Principles of the Civil Law, the Contract Law, the Guaranty Law, the Property Law, the Marriage Law, and the Succession Law concerning the specific problems in judicial practice. Those interpretations are legally binding and play an effective guiding role in judicial practice.


In addition to judicial interpretations, since 2011, the Supreme People’s Court has regularly published civil guiding cases. Although these guiding cases cannot become laws, they serve as important references to the courts in their adjudication. In addition, since they closely fit the changing social life, while establishing rules of adjudication, they play a positive role in enhancing the improvement of legislation in terms of the Civil Code by accumulating source materials for legislation and by summarizing experience and rules in judicial practice.



C. Solid Theoretical Support Provided by the Fruitful Achievements in the Research of the Science of Civil Law


After the foundation of New China, with the strengthening of the rule of law, the science of civil law in China gradually enters the stage of prosperity and development. In-depth discussions and researches are conducted about the theoretical basis for the science of civil law, the methodology of jurisprudence, theories of different fields of the civil law, and so on. Especially after the reform and opening-up, continuous civil and commercial legislative activities provide scholars of civil and commercial law in China with a large number of chances of research and participation and bring about a considerable amount of academic achievements relating to the system construction of the Civil Code and the design of relevant rules for particular fields of the civil law. Since October, 2014 when it was decided to compile the Civil Code, more than 8,000 academic papers with the Civil Code as the theme have been published, covering research and discussion on various aspects of the enactment of the Civil Code, including but not limited to: the study and research on the strategies of codifying the Civil Code, on the systematic structure of the Civil Code (for example, whether to include general provisions on creditors’ rights and whether to compile a separate part of personality rights), on the particular design of each part of the Civil Code, and so on. Generally speaking, scholars’ research on the compilation of the Civil Code gradually deepens with the progress of the compilation of the Civil Code. Besides the strategies of compilation and structural arrangements, many focus issues even some specific details became the topics for scholars’ heated discussion, such as the right of habitation, real rights for security, and the right of management of rural land in the Part of Property Rights; rescission of contract, validity of contract, and such typical contracts as factoring contract in the Part of Contracts; the right to claim for personality right, the right of privacy, and protection of personal information in the Part of Personality Rights; joint property of spouses, joint debts of spouse, confirmation of parent-child relationship, and minors and guardian of minors in the Part of Marriage and Family; scope and order of statutory successors, succession in subrogation, testamentary succession, and management of the estate in the Part of Succession; essential elements of liability for fault, damages for emotional distress, punitive damages, liability for special tortious acts including pollution of the ecological environment, and things thrown or falling from a building in the Part of Tort Liability. The relevant achievements on those issues are too numerous to mention.


Researches of civil law scholars keep pace with the progress in the compilation of the Civil Code and provide firm theoretical and intellectual support for system construction of the compilation of the Civil Code, the improvement of concepts and terms, and the design and arrangement of specific systems and rules. From another perspective, the compilation of the Civil Code is a rare opportunity for the development of the science of civil law in China, playing a great role in promoting and advancing the progress in research on the science of civil law in China and in revitalizing the science of civil law with Chinese characteristics.



D. Solid Social Basis Laid by Strengthening the Public Consciousness of the Rule of Civil Law



With the gradual improvement of civil legislation, the deepening of the judicial practice involving the civil laws and the progress in research on the science of civil law, the civil subjects are becoming more conscious of their civil rights, and consequently, the sense of civil law is taking deeper and deeper roots in people’s hearts, which is reflected by the ever-increasing number of various civil law cases in the judicial practice and by public participation in the compilation of the Civil Code. In the process of compiling the Civil Code, each published draft and opinion solicitation aroused considerable concern from the society and resulted in the active participation of the public who were eager to offer advice and suggestions. For example, after the drafts of specific laws of the Civil Code were published for the first time on the website of the NPC for opinions on September 5, 2018, until November 3, 2018, the NPC Standing Committee received 437,986 pieces of advice given by more than 100,000 people. After specific laws of the Civil Code were integrated, during the period from December 28, 2019 to January 26, 2020 when public opinions were solicited, a total of 13,718 netizens put forward 114,574 pieces of advice and suggestions. It can be said that with the promotion of the rule of law in China, the civil law has become the basic rule for governance of the country and people’s life, that to enact a civil code has been a consensus of the whole nation in terms of the rule of law, and that the people and all walks of the society have great expectations for the compilation and promulgation of a civil code.


After the foundation of New China, the people were enthusiastic about the enactment of a civil code several times, but failed to make it for various reasons. It is completely different nowadays. This time, there is firm legislative basis provided by separate civil laws which are relatively complete and proved effective in implementation over years, rich experience of judicial practice, comprehensive and in-depth theoretical research and demonstration, and extensive consensus of the public, which lay solid foundation for the successful promulgation of the Civil Code.



 III. GUIDING THOUGHTS, FUNDAMENTAL PRINCIPLES AND TECHNICAL APPROACHES FOR THE COMPILATION OF THE CIVIL CODE



A civil code is an encyclopedia of social life involving a wide range of topics and issues. As a result, it is a very complicated project to compile a civil code. In order to achieve the legislative goal of compiling a civil code with Chinese characteristics and the spirit of the times, we need to have the right guiding thoughts and follow scientific and technical approaches of legislation.



A. Guiding Thoughts and Fundamental Principles of the Compilation of the Civil Code



The guiding thoughts of the compilation of the Civil Code are ‘to hold high the banner of socialism with Chinese characteristics; to be guided by Maxism-Leninism, Mao Zedong thoughts, Deng Xiaoping Theory, the Important Thought of ‘Three Represents’, the Scientific Outlook on Development, and Xi Jinping Thought on Socialism with Chinese characteristics for a New Era; to strengthen the consciousnesses of maintaining political integrity, thinking in terms of the big picture, following the leadership core, and keeping in alignment with the central Party leadership; to foster full confidence in path, theory, system and culture socialism with Chinese characteristics; to resolutely defend the core status of General Secretary Xi Jinping in the CPC Central Committee and in the whole Party and the authority and the leadership of the Party; to fully implement the spirit of the 18th and the 19th National Congresses of the CPC and relevant plenary sessions of the CPC Central Committee; to insist on organic unity of the Party’s leadership, the people as the masters of the country, and the state governance under the rule of law; to implement China’s ‘five-sphere integrated plan’ and the ‘four-pronged comprehensive strategy’; to focus on the construction of the rule of law system with Chinese characteristics and a socialist country under the rule of law; to summarize the experience in practice and to adapt to the need of the times; to revise and compile in a comprehensive way the existing General Principles of the Civil Law, the Property Law, the Contract Law, the Guaranty Law, the Marriage Law, the Adoption Law, the Succession Law, the Tort Liability Law, and the civil laws and regulations on personality rights, which were enacted at different times, to form a civil code with Chinese characteristics and features of the times and reflecting the people’s will; to provide integrated civil law guarantee for upholding and improving the socialist system with Chinese characteristics in the new era, for the realization of the ‘two centenary goals’ and the fulfillment of the Chinese dream of national renewal.’


In the implementation of the above guiding thoughts, the work of compiling the Civil Code has to follow and embody the following basic principles:


The first basic principle is to pursue a correct political orientation, to uphold the leadership of the Party, to comprehensively carry out General Secretary Xi Jinping’s new idea, new thought, and new strategy of governance of the country under the rule of law, to resolutely implement the decisions and arrangements of the CPC Central Committee, to submit to and to be in service of the overall working plan of the Party and the country. In the process of compiling the Civil Code, the Party Leading Group of the NPC Standing Committed reported to and asked for instructions from the CPC Central Committee many times in terms of major issues involving the general idea, working plan, and style and structure of the Civil Code. General Secretary Xi Jinping hosted the meeting of the Standing Committee of the Political Bureau of the CPC Central Committee, listening to the reports and giving important instructions on the compilation of the Civil Code, which provided important guidance and principles for the compilation of the Civil Code.


The second basic principle is to stick to the people-centred and people-oriented legislation ideas with the protection of civil rights as the starting point and the ultimate goal, to respond effectively to the need of the people for the rule of law so as to better satisfy the ever-increasing demand of the people for good life and to fully realize, protect and promote the fundamental interests of the overwhelming majority of the people. In the process of compiling the Civil Code, the Legislative Affairs Committee of the NPC Standing Committee solicited public opinions many times via the website of the NPC, and went to the local and the relevant government agencies many times to conduct researches and listened to opinions and suggestions of people from all walks of the society, to have thinking unified and consensus reached in the process of collecting opinions and wisdom of people from all walks of the society to jointly promote the smooth progress of the work of compiling the Civil Code.


The third basic principle is to stick to the basis of the situation and reality of China and the problem-oriented idea, to comprehensively summarize the experience of civil legislation and practice in the past 40 years since the reform and opening-up of China were carried out, to consolidate, confirm and develop by means of codifying the achievements in the promotion of the rule of law, to guide the legislation with practical demands, and to make civil laws more targeted, more effective, and more adaptable. The Civil Code verifies the reform achievement of the separation of the ownership, the right to use and the right of management of the rural land, improves the rule of conclusion and execution of the electronic contract and the rule of property of the spouses, embodies the ideas of improvement of family civilization and ecological conservation, and tries to play an important role in guiding, regulating, promoting and safeguarding further reform and constant social development in China.


The fourth basic principle is to insist on the governance of the country both by the combination of the rule of law and the virtues, to lay emphasis on integrating the core socialist values into the civil laws and regulations, to vigorously promote traditional virtues and social morality, to strengthen the sense of rules, to promote the spirit of the contract, and to maintain public order and good custom. The guarantee provided in the Part of Contracts for safe transactions and execution of contracts, the unprecedented provision on sexual harassment and the maintenance of the peace of personal life in the Part of Personality Rights, the advocacy provisions added to the Part of Marriage and Family on establishing good family traditions, promoting family virtues and paying attention to family civilization, and so on, reflect the integration of social morality with family virtues and the promotion of the core socialist values in the Civil Code.


The fifth basic principle is to stick to the legislation in a scientific and democratic way and in accordance with the law, to continue to improve the systematization and integration of civil laws and regulations, to make civil law system both consistent and stable and rationally prospective and open, and to properly deal with the linkage among various regulations under the codified civil law system. 



B. Technical Approaches of Compiling the Civil Code



1. To Adopt the Technical Approach of ‘Compilation’ and ‘Enactment’. — To codify a civil code is neither to make a brand new law nor simply put the laws together. It is a legislative approach to make the law scientific, systematic, and unified. ‘Compilation’ means to sort out the existing well-established civil laws in China in a scientific way by revising and compiling the existing General Principles of the Civil Law, the Property Law, the Contract Law, the Guaranty Law, the Marriage Law, the Adoption Law, the Succession Law, the Tort Liability Law, and the civil laws and regulations on personality rights which were enacted at different times in China, and by systematically integrating, revising and improving the civil laws and regulations of the same kind, making the inconsistent provisions unified, the repeated provisions combined and streamlined, revising and improving the provisions which have not been suitable to the reality. ‘Enactment’ means to fill in the blanks of provisions in light of the practical experience and the demands of the times by setting out new provisions concerning the new situations and new problems in the social and economic life.


The compilation of specific laws of the Civil Code follows and carries out the guiding thoughts, and basic principles of the compilation of the Civil Code, summarizes the practical experience, and meets the demands of the times. The Part of the Property Rights further improves the property right protection with fairness as the core principle; the Part of Contracts further improves the fair dealing system to promote the free circulation of property and elements; the Part of Marriage and Family further improves the marriage, family and succession systems to enhance family harmony; the compilation of the separate Part of Personality Rights and the improvement of the Part of Tort Liability further improve the protection and relief systems concerning personal right, property right, and personality right of the natural persons and other civil subjects. All these parts, together with the General Provisions of the Civil Code, constitute the Civil Code with Chinese characteristics, features of the times and the people’s will, which is scientific in terms of systematic style, well organized in terms of structure, rational in terms of provisions, complete and coordinated in terms of contents.


2. To Adopt the Specific Technical Approach of ‘Generalization’. — In terms of specific techniques, the Civil Code of China sticks to the legislative approach of the ‘generalization’ of the civil law system, which is embodied both in the structure of ‘general provisions and specific laws’ adopted in the organization of the Civil Code and the general principles and different chapters of specific laws of the Civil Code. In compiling the specific laws, the similar regulations and systems in the same part are generalized. The common rules are summarized as the ‘general principles’ in the first chapter of each part, and the regulations other than the common rules on the other matters and acts are further classified in light of their uniformity and explicitly specified in different chapters. In this way, the Civil Code includes the fundamental, common and stable norms on the civil legal relations with no provisions on those involved in special groups of people or special fields, or on those in changing, without experience or much experience, or difficult to be covered or replaced in specific laws. 

IV. HIGHLIGHTS AND INNOVATIONS IN SPECIFIC LAWS OF THE CIVIL CODE



The Civil Code is comprehensive in contents and scientific in systematic style and systematically summarizes the theoretical research achievements and the practical experience of the civil and commercial laws over the past decades in China. It recognizes, consolidates, and develops in the form of code the achievements made in the implementation of the rule of law since the reform and opening-up, fully demonstrates and particularly reflects the achievements of the socialist legal system with Chinese characteristics and the advantages of such a system, and embodies many highlights and innovations in its specific laws.

A. The Part of Property Rights

The legal system of property rights concerns both the fundamental interests of the country and the life of the public. As the first part in specific laws of the Civil Code, the importance of the Part of Property Rights is self-evident. As required by the CPC Central Committee ‘to further improve the modern property right system, to promote the legalization of property right protection, to adhere to equal protection, overall protection, the protection in accordance with the law, joint participation and addressing both the symptoms and root causes’, the Part of Property Rights sticks to the basis of situations of the country, takes into consideration the reform achievements and practical demands, and further improves the legal system of property rights. There are 5 titles, 20 chapters, and 258 articles in the Part of Property Rights with the following main highlights and innovations.

1. To Keep Pace with the Times and to Improve the Expressions of the Fundamental Economic System. — The Decision of the Central Committee of the Communist Party of China on Some Major Issues concerning Upholding and Improving the Socialist System with Chinese Characteristics and Promoting Modernization of the National Governance System and Governance Capacity adopted at the Fourth Plenary Session of the 19th CPC Central Committee put forward a new expression of the fundamental socialist economic system. In order to carry out the spirit of that Plenary Session and to keep pace with the times, article 206 in the Part of Property Rights changed the relevant provision on the fundamental economic system into the one that ‘The state shall uphold and improve the fundamental socialist economic systems such as the system under which public ownership plays a leading role and all forms of ownership develop side by side, the system under which distribution according to work is dominant and other diverse distribution modes coexist, and the socialist market economic system’.

2. To Improve the System of Right to Rural Collectively-owned Properties and to Consolidate the Achievements in the Reform of the Property Right System. — The Part of Property Rights verifies the achievements in the reform of the property right system based on the generalization of experience in the reform of the system of right to rural collectively-owned properties.

The first is to implement the system of ‘separation of ownership, contract right, and management right to the rural land’. Separation of ownership, contract right and management right to the contracted rural land is a significant decision made by the CPC Central Committee and the State Council considering the economic situation in the rural areas on the basis of the former rights to the rural land consisting of ‘the ownership of the collectively-owned land and the contracting peasants’ contractual right of land. In the report to the 19th CPC National Congress, improving the system of separation of ownership, contract right, and management right to the contracted rural land is also regarded as one of the important tasks of ‘putting new development concept into practice and constructing modernized economic system’. Tested in practice for many years, the reform to separate the ownership, contract right and management right to the contracted rural land has achieved a good result and has turned out to be scientific and rational. Such a result has been reflected and consolidated in a timely manner in the Rural Land Contract Law revised and improved in 2018. In accordance with the relevant spirits of the CPC Central Committee, the Part of Property Rights improves the relevant provisions in the Chapter of ‘Contractual Right of Rural Land’ in the revised Rural Land Contract Law and further consolidates and confirms such a great reform achievement. Article 339 in the Part of Property Rights provides that ‘the holder of the right to the contracted management of land may decide on his own initiative to circulate his right to the contracted management of land to others in accordance with the law by means of a lease, equity contribution, etc.’; article 340 provides that ‘the holder of the right to the management of land shall have the right within the period specified in the contract to possess the rural land and to conduct agricultural production and operation and to make profits therefrom’, and articles 341 and 342 provide the adverse effectiveness of registration of the right to the management of land and circulation of the right to the management of land by means of a lease, equity contribution, mortgage, etc. Meanwhile, the provision in article 184 of the Property Law that the right to use the cultivated land may not be mortgaged is deleted (article 399) to meet the need of marketing the right to the management of land after ‘three types of right to the rural land are separated’, and consequently, to make the right to the management of land even more flexible on the basis of safeguarding the collective ownership and stabilizing the contracting right of farmers. The recognition and guarantee of the right to the management of land provided to the right holder make possible the free circulation of the right to the management of land and make farmers enjoy their right to the use of land to a greater extent.

The second is to improve the system of collectively-owned construction land and house sites in rural areas. The Part of Property Rights specifies respectively in articles 361 and 363 that ‘where the collectively-owned land is used as the construction land, it shall be handled in accordance with the relevant laws on land management’ and ‘the obtaining, use and transfer of the right to the use of the house sites shall be governed by the laws on land management and relevant regulations of the country’. Since the latest revised Law on Land Management abolishes the dual systems under which the collectively-owned construction land cannot be circulated in the market, the Part of Property Rights does not explicitly provide that collectively-owned construction land in the rural areas for commercial use can be marketed in accordance with the law. However, such a new institutional innovation is actually recognized and consolidated via the linkage of the Part of Property Rights to the revised Law on Land Management.

3. To Care about the Public Well-Being and to Respond to the Social Concern and the Public Demands. — The issue of property rights is the biggest issue in the life of the public. The Part of Property Rights strengthens the protection of the property rights of the citizens and responds to the demands of the public for material utilization, which is the reflection of the idea of ‘putting the public well-being above all else’ in the Civil Code in China.

The first is to improve the system of the owners’ partitioned ownership of building areas. In recent years, problems are often reported by the masses that it is difficult to organize the owners’ congress or to set up the owners’ committee, to use the public maintenance fund, or to protect the owners’ rights, and that the property is managed in an improper way. To solve those problems, the Part of Property Rights makes the following improvements in the Chapter of Owners’ Partitioned Ownership of Building Areas. First, in light of the close relation of the neighbourhood committee with the residential community in reality in China, it provides additionally in paragraph 2 of article 277 that the neighbourhood committee shall guide and assist the organization of the owners’ congress or the election of the members of the owners’ committee to help promote the residents’ self-management of their community and help the protection of the residents’ rights. Second, in terms of the decision jointly made by the owners on ‘the use of funds for maintenance of the buildings and the attached facilities’, article 278 changed the rule of ‘double over two thirds’ agreement into ‘double 50 percentage’ agreement. Meanwhile, article 281 extends the scope of use of the maintenance funds to repair, replacement and renovation of the public areas such as the elevator, the roof of the building, the outer wall, and the barrier-free facilities, and sets out additionally the special procedure of the use of the maintenance funds in emergencies. Third, in order to enhance the guarantee of owners’ rights protection, a provision is added that ‘where the owners or other actors refuse to perform their relevant obligations, the party involved may make a report to or file a complaint with relevant administrative authority. The relevant administrative authority shall cope with it in accordance with the law’ (paragraph 3 of article 286), and can require and urge the local administrative department to properly handle the illegal activities conducted in the community, and consequently, to enhance the management of the community and to better protect the owners’ legal rights and interests.

The second is to clarify that the right to the use of house sites will be automatically renewed upon expiration. In order to meet the requirement of the CPC Central Committee for the improvement of property rights protection to protect property rights in accordance with the law, the Part of Property Rights explicitly provides that ‘the right to the use of house sites shall be automatically renewed upon expiration. The payment or reduction or exemption of the fees during the renewal term shall be determined in accordance with the law, the administrative laws and regulations’ (article 359).

The third is to add the rule of the right of habitation. In order to meet the requirement presented in the report to the 19th CPC National Congress ‘to move faster to put in place a housing system that ensures the supply through multiple sources, provides housing support through multiple channels, and encourages both housing purchase and renting, and to make us better placed to meet the housing needs of all of our people’, the Part of Property Rights, on the basis of existing experience of judicial practice, adds a new chapter (Chapter XIV) for the rule of the right of habitation with comprehensive provisions on the validity, functions, creation, nature, and termination of the right of habitation. According to articles 367 and 371, the party can create the right of habitation by concluding a contract on the right of habitation or by means of will and testament. Unless otherwise agreed upon between the parties, the creation of the right of habitation shall be free of charge; where the right of habitation is to be created, it shall be registered, and the right of habitation is created upon its registration (article 368). The establishment of the rule of the right of habitation is beneficial to safeguarding the flexibility of the civil subjects’ arrangement of housing, to satisfying and guaranteeing the demand of special groups of people for housing, especially to providing a guarantee to those people who live in the public rental housing and to the elderly people who pay for a new house by mortgaging the old one.

4. To Improve the Business Environment to Promote Optimized Allocation of Resources. — The first is to improve relevant provisions on the mortgage. The improvement of the business environment made by the Part of Property Rights is mainly reflected in the revision of the security right. For example, it clarifies the security function of some atypical security contracts such as financial leasing, factoring, and the retention of ownership, extends the scope of security contract to the mortgage contract, pledge contract, and other contracts with the function of security (paragraph 1 of article 388); leaves room for the establishment of unified registration system of chattel mortgage and the right pledge by deleting the relevant provision on the institution of security right registration; simplifies the general rules for mortgage contract and pledge contract (articles 400 and 427) to grant the parties more autonomy; further specifies the relevant provisions on the unified rule of repayment for the exercise of security right (paragraph 2 of article 414) and improves relevant provisions on failed mortgage or pledge (articles 401 and 428) to maintain the safety and order of transaction. All the revision and improvement meet the demands of the market subjects, make the market subjects enjoy more freedom of making their own decisions in accordance with the law, and better improve the business environment.

The second is to add the rule of accession. With the convenient circulation of things, the value of things in exchange and in use is increasingly obvious. For the optimized allocation and constant development of resources, in addition to the provision on the right of habitation for promoting the effective use of houses, article 322 provides the rule of accession to clarify the ownership of the things incurred from processing, adhesion, or mixture, which shall be determined under the principle of making full use of the things and protecting the party without fault where there is neither agreement nor definite agreement nor legal provision. ‘Where the fault of one party or the determination of the ownership of the things causes damage to the other party, compensation or remedy shall be granted.’ Such a provision highlights the optimized allocation of resources provided in the Part of Property Rights. In other words, the person who is in need of the property or who is most capable of making use of the things should enjoy the ownership, and the other party should be compensated for losses at the same time, which can achieve justice and make the social resources more effectively utilized as well.

B. The Part of Contracts

In order to carry out the spirit of deepening the reform comprehensively and to meet the requirement of the CPC Central Committee to improve the legal system of socialist market economy, based on the Contract Law and in light of the demand of the development in the new era, the Part of Contracts integrates the theoretical research and development and the judicial practical experience of the Contract Law in a scientific and systematic way, takes the reform achievements in modernizing the contract law in other countries (or regions) as reference, insists on the agreement, equal exchange and fair competition, actively promotes the free circulation of goods and elements, serves to tackle new situations and new issues in the implementation of the Contract Law. There are 3 titles, 29 chapters and 526 articles in the Part of Contracts. The innovations and highlights in the style, value and system are as follows:

1. To Integrate the Theory and the Practical Experience and to Make Innovations in Constructing Scientific Regulation System of the Contract Law. — The first is to creatively adopt the three-title structure. The Civil Code of China makes significant changes to the civil code of the traditional civil law countries in terms of structure. One obvious change is that it does not adopt the traditional part of obligations, which is directly replaced by the Part of Contracts and the Part of Tort Liability. Such arrangement is the inheritance of the traditional legislative approach in China and proves to be feasible and effective in practice, which avoids repetitive and abstract provisions on obligations and makes implementation and application of the law easier. In order to deal with the issues that there are ‘no general provisions on obligations’ and ‘no provisions on the obligations resulted from voluntary service or unjust enrichment instead of contracts or torts’, the Part of Contracts creates a unique systematic structure which has the function of general provisions on obligations and is as greatly inclusive as the law on obligations, that is, a three-title structure of general provisions, nominate contracts and quasi-contracts. The Part of Contracts serves the functions of general provisions on obligations by enriching the contents in the general provisions of the Part of Contracts. For example, article 468 is added to adopt the rule of application of provisions on non-contractual obligations, and in turn, clarifies the function of the general provisions of the Part of Contracts as the general principles to be applied to obligations. A number of regulations on obligations are added, such as the rule of multi-party debt (articles 517-521); rules of assignment of rights or obligations (articles 545-550, articles 551 and 553) and the termination of obligations (articles 557-559) are more refined and improved to enlarge the scope of their application. What is more, considering that the obligations involved in voluntary service and unjust enrichment are both similar to and different from contractual obligations, the Part of Contracts includes a separate title of ‘quasi-contract’ with comparatively detailed provisions so as to solve the problem concerning in which part the obligations that do not result from contracts or torts should be. Thus, the three-title structure of the Part of Contracts highlights the function of general provisions on obligations served by the general provisions of the Part of Contracts, properly handles the logical relation between contracts and voluntary service or unjust enrichment, and makes a logical transition among contracts, quasi-contracts and tort liabilities, which is scientific and can be regarded as a successful creation in the modern contract law system.

The second is to form a more rigorous and scientific system of contents. While creatively formulating a scientific organizational structure, the Part of Contacts makes overall improvement, completion and development by means of revision, addition and improvement. Take the General Principles as an example, the Chapter of General Principles in the Part of Contracts improves the rules of formation of contract by introducing other ways of contract formation rather than the way of offer and acceptance (article 471), improves the provision on contracts to be concluded in writing by introducing the rule of contract formation by means of specific performance (article 490), adds the rule of precontract (article 495), and so on; it improves the rules of performance of contracts by drawing on the experience of judicial explanation of legislation and adding the obligation of the party with options (articles 515 and 516), improves the relevant provisions on third party contract (paragraph 2 of article 522), and verifies the principle of change of circumstances (article 533); it improves the rules of the exercise of subrogation by drawing on the judicial experience of contract preservation and by adding the chapter of ‘contract preservation’; it improves the rules of contract modification and assignment by refining the provisions on the assignment of obligations (articles 545-550) and adds the provision on jointly assumption of obligations (article 552); it improves the rules of termination of contract and liability for the breach of contract by adding the rule of payment of the debts owed by the same debtor to the same creditor (article 560), by improving the provisions on rescission of contract (articles 562-566) and by drawing on the relevant deposition rule in the guaranty law (articles 586-588); so on and so forth.

2. To Promote the Spirit of Contract and to Construct a Diversified and Integrated Value System. — The first is that to promote the spirit of contract is one of the core ideas in the compilation of the Part of Contracts, which is mainly reflected in the following three aspects. First, it is to further promote the freedom of contact. The Part of Contracts is compiled under the circumstance where reform is being comprehensively deepened, which further promotes the idea of freedom of contract. For example, it deletes the provision on contract supervision institution in article 127 of the existing Contract Law; it enhances the freedom of contract by providing that where a contract is not valid for the failure to be submitted for approval, the effectiveness of the relevant stipulations therein on the obligation to apply for approval shall not be influenced (article 502); so on and so forth. Second, it is to uphold contractual justice. The Part of Contracts reinforces the protection of the weak party to a contract in order to uphold contractual justice. For example, drawing on judicial interpretations, article 497 improves the provisions on the invalidity of standard contracts; the Chapter of ‘Contracts for Supply of Power, Water, Gas or Heat and the Chapter of ‘Transportation Contracts’ provide compulsory obligation of suppliers of power, water, gas or heat and common carriers to conclude contact with the social public (articles 648, 656, and 810). Third, it is to make the obligation of contract performance strictly observed. The Part of Contracts prevents the risk of nonperformance of the contract and guarantees the exercise of creditors’ rights by specifying that the party shall follow the good faith principle (article 509); by adding the system of contract preservation (Chapter V in the Part of Contracts) to recognize completely the subrogation and revocation right concerning the interests of the designated third party and to prevent dishonest activities in a chain of debts or in the willful transfer of property; by strengthening and improving the contractual relief system such as the unsafe right of defence (articles 527 and 528), and the contract rescission (articles 562-566).

The second is to construct a more diversified and integrated value system. Based on the promotion of the spirit of contract and in light of changes and development of transaction involved in the social economy, the Part of Contracts reinforces the requirement on the fundamental principles of honesty and fairness by strengthening pre-contractual obligations (articles 500 and 501) and the principle of good faith in contract performance (paragraph 2 of article 509), introducing the rule of changes of circumstances and making it adaptable to the circumstances of force majeure (article 533), and requiring the observation of good faith principle after the termination of credit and debt relation (article 558), so on and so forth. Guided by the concept of new development, the Part of Contracts also introduces the value of ecological environmental protection and implements the green principle of being conducive to saving resources and protecting ecological environment, requires the parties to avoid waste of resources, environmental pollution or damage to the ecosystem (paragraph 3 of article 509), and provides the obligation of collecting used goods in light of trade usage after the termination of credit and debt relation (article 558) and the obligation of the seller to a sales contract to collect used goods in accordance with the law (article 625) so as to promote the construction of ecological civilization.

3. To Be Based on the Development of the Times and to Concern and Settle Hot Social Issues. — The compilation of the Part of Contracts is based on the new era and problem orientation. It actively improves the existing legislation and makes innovations on the basis of mature research to adapt the legislation to and meet the demands of transaction system of socialist market economy in China under the circumstances of the new era.

The first is to respond to the demands of the development of transactions in the market in the new era. The Part of Contracts positively responds to the demands of the development of transactions in the market in the new era by adding four types of typical contracts under the title of Nominate Contracts, guaranty contract, factoring contract, property management service contract and partnership contract, which all involve the noticeable issues to be regulated in the development of society and market in China. The existing Guaranty Law and the General Principles of the Civil Law have some provisions on the guaranty contract and the partnership contract. However, they will be repealed after the Civil Code is promulgated and put into operation. In addition, some existing provisions have been out of date and are not comprehensive. Given the importance and necessity of guaranty contract and partnership contract in the market, they are comprehensively regulated under the title of Nominate Contracts in the Part of Contracts (Chapters XIII and XXVII). The legal theory of factoring the contract as a typical contract (Chapter XVI) is that factoring business can offer comprehensive financial service to entity enterprises. In recent years, factoring business rapidly developed into a large amount with frequent disputes. Due to the realistic problem that it is difficult and expensive for small and medium-sized enterprises to make loans, it is necessary to regulate the factoring contract to make factoring business develop in a healthy and legalized way and to broaden financing channels for small and medium-sized enterprises to meet their demands for loans and development. In terms of property management service contract, it concerns the daily life of so many owners and the community management and has become a common and ever increasingly applied contract in reality. In order to better regulate the order in the property management service market, the Part of Contracts provides it as a typical contract (Chapter XXIV). What is more, due to the new transaction means of electronic commerce brought about by the rapid development of information and internet technology, the Part of Contracts has special provisions targeted at particular regulations of electronic contract (article 512); it further improves the regulations on technology license contract to enhance encouragement and protection of technology license (articles 862-874); so on and so forth.

The second is to concern and settle hot social issues. The Part of Contracts positively responds to the noticeable difficult problems in the economic life of the broad masses of the people in China by providing particular regulations. For example, to address the hot issues in recent years involving transportation safety such as carriers’ failure to fully perform their obligation of guaranteeing safety in transportation, disguised charges damaging passengers’ rights and interests, passenger’s forcible occupation of seats or forcibly grabbing the steering wheel, and so on, the Chapter of Transportation Contract particularly refines the rights and obligations of the parties to a passenger carriage contract (articles 815, 819 and 820); in order to settle ever-increasing disputes over property management service, the Part of Contracts regulates both the property management service contract as a typical contract and key issues involved in the performance of property management service contract, specifies the information disclosure obligation of the providers of property management service in article 943 and adds the provision in article 944 that the property management service providers shall not collect fees for property management service by means of cutting off power, water, heat, or gas; in order to prevent the circumstances in intermediary service where the client bypasses the intermediary after the service is provided and concludes a contract directly, the Part of Contracts adds article 965, providing that where the client bypasses the intermediary after the service is provided and concludes a contract directly, he has to make payment to the intermediary to better uphold honesty and credibility in the market; so on and so forth. 

C. The Part of Personality Rights

Personality right is the most fundamental and important right of a civil subject, which concerns the dignity of an individual. Thus, it is an important task in the promotion of the rule of law in China to protect the personality right and to safeguard personal dignity. In order to put into practice the spirits of the 19th CPC National Congress to ‘protect the people’s personal rights, property rights and right to dignity’, to meet the requirement in the Constitution that ‘the personal dignity of citizens is inviolable’, the Part of Personality Rights constitutes a separate part in the Civil Code. It makes the important interest in personality to be protected in practice a legal right through verification in the law and raises personality rights protection in China to an unprecedentedly high level through the improvement of the system of personality rights protection, which is a significant innovation in the civil legislation in China to meet the demands of the times and is an important measure to comprehensively safeguard dignity and personality rights of individuals. The separate Part of Personality Rights embodies the value idea of full respect and protection of the people’s rights, is the particular manifestation of the implementation of the spirits of the 19th CPC National Congress and the Constitution, and is one of the important symbols of China as a major country in guiding civil legislation.

There are 6 chapters and 51 articles in the Part of Personality Rights, which adopts the structure of ‘general rules of personality rights and specific personality rights’. The chapters concerning specific personality rights illustrate in detail the provisions in article 110 in the General Provisions of the Civil Code and respectively include relatively detailed provisions on ‘rights to life, inviolability and integrity of person, and health’, ‘the right of name’, ‘the right of likeness’, ‘the right of reputation and the right of honour’, and ‘the right of privacy and protection of personal information’. Such structure makes the chapters in the Part of Personality Rights mutually corresponding to the provisions in the Part of General Provisions and keeps the Civil Code coherent in logic and integrated in structure.

In terms of specific provisions, the Part of Personality Rights sticks to the people-centred idea, summarizes the precious experience in legislation and judicial practice as well as the achievements of theory research, properly responds to the social concerns, includes scientific and operational provisions, and lays the firm legal foundation for the protection of personality rights. Generally speaking, what is worthy of acknowledgement is as follows:

1. To Define the Personality Right in General and in Particular in a Scientific Way and to Construct an Open System of Personality Rights and Interests. — The personality right is the core concept in the Part of Personality Rights, which defines the personality right in general and in particular in a scientific way and distinguishes it from personality or human rights in the Constitution. Article 989 explicitly provides that ‘this Part deals with the civil relations arising in and out of the enjoyment and protection of personality rights.’ The use of the term ‘enjoyment’ highlights the natural attribute of the innate personality right, demonstrating the relationship between the personality right and the personality, whereas the use of the term ‘civil relation’ highlights the private right feature of the personality right. Meanwhile, considering that new types of personality rights will come into being with the social development, paragraph 1 of article 990 numerates the personality rights and paragraph 2 is an all-inclusive provision which brings ‘all other personality rights and interests based on personal freedom and dignity’ under the protection of the Civil Code, which guarantees the openness of system of the personality right protection and lays basis and leaves room for the regulation and protection of potential new types of personality rights in the future.

The definition of many specific personality rights in the Part of Personality Rights also manifests the scientific and open features of the legislation. For example, in article 1018, the traditional approach of defining portrait based on ‘the face feature’ is abandoned, instead, the ‘identifiable’ standard is adopted so that the scope of portrait protection is further enlarged; in article 1032, the objects of the right privacy are defined to cover the peace of personal life in addition to private space, private activities, and private information, showing the openness of the connotation of the right to privacy. The scientific definition of concepts makes the personality right system in the Part of Personality Rights inclusive and open, which fully demonstrates the importance attached to the protection of personality rights in the Civil Code in China.

2. To Combine the Prevention with Remedy to Protect Personality Rights in a More Comprehensive Way. — With the rapid development of information technology, the possibility of infringement of personality rights increases, the harm as the result of such infringement becomes more serious, and the damage to the personality right in some cases is uncontrollable and irreversible, the Part of Personality Rights provides comprehensive protection for personality rights by explicitly providing the rule of injunction on the infringement on personality rights (article 997) to stress the prevention of infringement on personality rights and by clearly defining acts of sexual harassment and providing the obligations of the employer to take reasonable measures to prevent and stop the occurrence of sexual harassment (article 1010). Especially, articles 995-1000 verify the right to claim for personality right and provide in detail the remedies for damaged personality rights, which provides comprehensive protection for personality rights including precaution against infringement on personality rights and remedies for damage caused by infringement on personality rights and fully manifests the people-oriented value idea in the Civil Law of China.

3. To Solve Realistic Problems and Meet the Demands of the Times to Highlight the Features of the Times. — With social and economic development, the types of personality rights and the ways of utilizing personality rights are becoming more and more diverse. The provisions in the Part of Personality Rights are targeted to solve the problems in the reality of China, to meet the demands of development in the new era and to foresee the prospective development and the protection of personality rights in the future, which highlights the feature of the times embodied in the Civil Code of China. For example, in terms of the major ethical debate on the issues involving the donation of human body or organs, or human gene editing, the Part of Personality Rights responds to the scientific and technological development concerning the human body by regulating the medical and research activities involving body donation, clinical trial on humans, human gene, or human embryo (articles 1006-1009); in terms of ever-increasing commercial use of personality rights, the Part of Personality Rights provides legal basis and regulatory protection to such commercial use by specifying the rules of commercial use of personality rights including name, title, portrait, and so on (articles 1012, 1013, and 1017-1023); in terms of the big threat to the right of likeness and the right of privacy brought about by explosive internet and high-tech development in the modern era, articles 1019 and 1023 include provisions on the infringement on others’ personality rights by means of portrait or voice highly simulated with the use of information technology, and Chapter VI meets the demand for the protection of information by providing protection for the right of privacy and for the personal information; so on and so forth.

4. To Fully Consider the Balance among Various Interests and to Provide Clear Guidance for the Activities of the Civil Subjects and the Adjudication of Judges. — In practice, exercise and protection of personality rights may cause conflicts with other rights and interests. To overcome such conflicts, the Part of Personality Rights has many explicit provisions on the balance among various interests and provides clear guidance for the activities of the civil subjects and the adjudication of the courts. For example, article 998 explicitly provides many other factors to be considered in determining the civil liability for the infringement on personality rights rather than the rights of life, inviolability and integrity of person and health, including the profession of the tortfeasor and the victim, the extent of influence, and so on, which involves the interests balance among the protection of and limitation on personality rights of public figures, news media supervision and protection of individual rights and interests, and provides concrete and clear guidance for the adjudication of judges. Other examples are the provision of article 1008 on legal requirements for ‘clinical trial on humans’, which reflects the balance and the coordination of the Civil Code between the promotion of medical technological development and the safeguard of people’s life and health; the rule in article 1020 on reasonable use of the right of likeness (exemption clause), which reflects the balance between the protection of use of personality rights for social public interests and the protection of individual rights and interests; the provision in article 1025 on ‘limitations on right of reputation’, which reflects the balance between the protection of the right to reputation and the protection of the freedom of news media supervision; so on and so forth.

Besides the improvements listed above, the legislative techniques of the compilation of the Part of Personality Rights are also remarkable in the following aspects: First, the designs of rules are more refined. For example, due to the particular rules for the exercise of personality rights, the Part of Personality Rights defines specific personality rights more precisely (such as the provisions on the invasion of privacy and violation of the right of privacy in articles 1032 and 1033) to clarify the corresponding rules of exercising the right of privacy so that the regulations on empowerment, acts, and adjudication are unified. Second, the language used in legislation is more precise and rigorous. For example, article 994 adopts the expression of ‘the name, portrait, reputation, honour, privacy, and body of the deceased’ instead of the expression of ‘rights or interests of the deceased’, which makes the logic more self-consistent.

D. The Part of Marriage and Family

Harmony in the family leads to success in everything. A well-regulated family leads to the tranquillity of the country. Thus, it is obvious that every provision in the Part of Marriage and Family is closely related to the daily life and the happiness of every family, which can be regarded as the part most closely related to the masses, and therefore, is a great concern to the public in the process of its compilation. The Part of Marriage and Family is compiled after repeated studies and research. It further improves its system, incorporates the core socialist values, better maintains the ethical nature of marriage and family, promotes family virtues, actively advocates for the construction of family civilization, and tries to tackle new situations and new problems in the field of marriage and family. There are 5 chapters and 79 articles in the Part of Marriage and Family with innovations and highlights as follows:

1. To Integrate the Existing Rules and Regulations in a Scientific Way and to Establish a Complete Legal System of Personal Status Relationship. — The Part of Marriage and Family scientifically sets up the framework of the provisions on status relationship related to marriage and family of the natural person, and adopts the structure with general principles and detailed provisions: Chapter I is about the general principles on marriage and family, specifying that the scope of its adjustment is ‘the civil relations brought about by marriage or family’ (article 1040); other chapters integrate the Marriage Law and the Adoption Law with a more reasonable and improved systematic structure so that an integrated legal system of marriage and family is established with its name and contents consistent with each other. Its scientific, logical, and integrated features are mainly manifested in the following two aspects: First, by means of generalization, article 1045 adds the basic concepts of relative, close relative and family member, and with highly abstract basic concepts, makes the contents in the Part of Marriage and Family scientific and logical. Second, the Chapter of ‘Family Relations’ provides ‘husband and wife relationship’ and ‘parent-child relationship and relations with other close relatives’ in different sections respectively, which emphasizes the independent and important nature of the parent-child relationship in marriage and family relations, reflects the attention equally paid to the adjustment of husband and wife relationship and the adjustment of the parent-child relationship, further clarifies that the regulation objects include all types of family relations, and consequently, makes the contents and structure integrated with each other. 

2. To Be Guided by the Core Socialist Values and to Formulate the Outlook on Marriage and Family in the New Era. — Marriage and family relations involves ethics in its nature, the regulation on which should not only aim at the exercise of personal freedom and realization of personal values, but also ensure the maintenance of moral order in the family and happiness and tranquillity of the family. The Part of Marriage and Family fully observes the core socialist values and formulates diversified and civilized outlook on marriage in the new era oriented with the core socialist values such as civilization, harmony, freedom, equality, the rule of law, friendliness, and so on.

The first is to emphasize the construction of family civilization. Family is the basic cell of a society. Family tradition and education have an important influence on one’s growth and life. When delivering a speech to the delegates to the First Session of the Commendation Meeting of National Civilized Families, General Secretary Xi Jinping points out that the Chinese traditional family virtues are the precious spiritual legacy of the construction of family civilization and he hopes that ‘the family, family education and family traditions must be stressed’. The Part of Marriage and Family attaches great importance to the values and the functions of a family as a whole, has family virtues such as fostering good family traditions and the promotion of mutual respect and love as the main value choices, and changes the excellent traditional family culture and family virtues into legal norms. For example, the Chapter of ‘General Principles’ adds a provision advocating that ‘Families shall foster good family traditions, promote family virtues, attach importance to family civilization construction’ (article 1043); in the Chapter of ‘Family Relations’, a whole section regulates the parent-child relationship, stressing the parents’ obligation to bring up their children, the children’s obligation to support their parents, and mutual respect between parents and children to promote the family virtues of supporting the elderly and raising the children; so on and so forth. The Part of Marriage and Family ensures and leads the trend of family ethics, which puts into practice the important thoughts of General Secretary Xi Jinping about the construction of family civilization and shows the special feature of state governance under the rule of law and virtues.

The second is to attach more importance to the freedom and value of individuals. While stressing family traditions and family virtues, the Part of Marriage and Family attaches more importance to freedom and value of individuals as well as equality in the marriage and family relations. For example, it reduces the number of the circumstances under which marriage is invalid (article 1051); it deletes the prohibition on marriage of ‘a party who suffers from a decease which is regarded by medical science as unfit for marriage’ and changes it into the provision that requires for ‘disclosure of the truth before marriage registration’, otherwise, the other party can ‘make a request for dissolution of the marriage’ (article 1053), which shows the respect to the will of the parties and strengthens the right to be informed of the truth and the protection of freedom of marriage; it further improves the provisions on the procedure for divorce and stresses the freedom of divorce by providing in article 1069 that children shall respect their parents’ rights of marriage (including rights of divorce) and by adding the provision in article 1079 on the rules of adjudication in ‘cases filed again after divorce is not upheld by the court’ to avoid ‘the use of mediation to drag on the case’; it draws on judicial interpretations and introduces and improves the rule of division of the couple’s joint property (article 1066) to safeguard the exercise of equal property rights by husband and wife.

The third is to protect vulnerable groups. The Part of Marriage and Family further strengthens the protection of the legal rights and interests of women, minors and elderly people to achieve fairness and justice in the legal sense. For example, it further improves the rule of compensation for doing housework in the relief system of divorce (article 1088) to safeguard the rights and interests of the weak party who does a larger share of housework for the family as a whole at the cost of his or her own career development; it adds the provision that the issue on bringing up the child who has reached the age of two when the parents get divorced shall be determined by the court in the way most favorable to the minor child and that ‘ where the child has reached the age of eight, his or her will shall be respected’ (paragraph 3 of article 1084); it deletes the condition limitation in the Adoption Law on the adoptee ‘who has not reached the age of 14’ (article 1093) and provides that the adoptee can be a minor under the age of 18; it further improves the provision on the principle of ‘most favorable to the adoptee’ by adding the provision in article 1044 to prohibit ‘buying and selling adults under the disguise of adoption’ and by adding the provision in article 1098 on the precondition for adoption that the adopter ‘shall have no criminal record unfavorable to the healthy growth of the adoptee’; all of these highlight the idea of minor protection.

The fourth is to stress equal protection and equal regulation. In order to better achieve substantive justice and equal protection of man and woman, the Part of Marriage and Family adds provisions on stressing the protection of the rights and interests of the party without fault. For example, paragraph 2 is added to article 1054 to grant the party without fault the right of claim for damages when the marriage is void or is revoked; article 1087 provides that at the time of divorce, where husband and wife fail to reach an agreement on the disposition of their joint property, the court shall render a judgment under the principle of caring for the wife, the children and the party without fault; article 1091 adds an all-inclusive clause on the statutory causes for damages incurred by divorce, providing that where one party ‘has committed any other serious faults’ except for the enumerated bigamy, domestic violence, and so on. What is more, in the Chapter of ‘Adoption’ in the Part of Marriage and Family, in the provision on the adoption by a person without spouse in satisfaction of the age difference of 40, ‘a male person adopts a female child’ is changed into ‘a person adopts a child of opposite sex’ (article 1102), which observes the principle of equal protection of man and woman (including equal regulation on man and woman).

3. To Be Based on the Development of the New Era and to Solve the Hot Social Problems. — The first is to improve the matrimonial property and debt systems. Statutory matrimonial property system and matrimonial debts have been the hot issues concerned about in the process of compilation of the Part of Marriage and Family. After careful study and research, the Part of Marriage and Family adopts the rule of ‘joint possession of the property acquired by husband and wife in their marriage life’ as the rule of the statutory matrimonial property, and in light of the diversified means of property income at present, further improves and expands the scope of property to be treated as the joint property by including ‘remuneration for personal services’ and ‘earnings from investment’ into the joint property of husband and wife (article 1062). Targeted at the heated social debate on matrimonial debt, the Part of Marriage and Family adds the rule of authority to handle daily household matters (article 1060) and clearly limits the matrimonial debt to ‘the debt owed with the willingness jointly manifested by husband and wife by means of joint signature of husband and wife or by means of subsequent ratification of either husband or wife and the debt owed by either husband or wife in the duration of their marriage in his or her own name for the daily life of the family’ in article 1064. On the one hand, it rectifies marriage as the life jointly shared by husband and wife rather than a non-commercial group. On the other hand, it avoids the circumstances where husband or wife is forced to assume the obligation to pay huge debts due to the other one’s commercial activities or risks or selfish conducts to manifest the legal protection of individual independence, freedom, and rights and interests.

The second is to add a new provision on the cooling-off period before the divorce. Given the increasing divorce rate and wanton divorce (especially the wanton divorce of young couples) and the time taken for husband and wife to grow up in their marriage life, the Part of Marriage and Family specially adds the provision on the cooling-off period of 30 days before the divorce (article 1077) in order to urge husband and wife to repair the cracks in their marriage and help them grow up in their marriage life and maintain the stability of their family.

The third is to grant the ‘right of objection to parent-child relationship’. In terms of the increasing number of children born out of wedlock and disputes over the parent-child relationship, the Part of Marriage and Family adds a provision to grant ‘the right of objection to parent-child relationship’ to the interested person in the parent-child relationship (article 1073), which limits such right of an adult child to the right to file an action for confirmation rather than the denial of the parent-child relationship. Such a provision not only safeguards the individual right of the party, but also helps maintain the order in the society in terms of blood relationship.

The fourth is to make relevant rules to adapt to changes in population policy and in law. In order to adapt to the population situation and the policy change in China, the Part of Marriage and Family deletes the provisions in the Marriage Law that ‘Family planning shall be practiced’ and that ‘Both husband and wife have the duty to practice family planning.’ It also correspondingly revises the relevant provisions in the Chapter of ‘Adoption’, changing the ‘childless’ requirement on the adopter into the ‘childless or one-child’ requirement on the adopter (article 1098) to permit an adopter with a child to adopt one child (article 1100) in order to be consistent with the policy of the country and relevant laws.

E. The Part of Succession

There are 4 chapters and 45 articles in the Part of Succession, which supplements, revises, and improves the legal system of succession established in the Succession Law promulgated in 1985 in light of the development and changes in China in social and family structures, ideas of succession to meet the realistic demands of the people for the disposition of the estate. The main progress is as follows:

1. To Refine and Improve the Inner Logic While Safeguarding the Stability of the Legal System of Succession in China. — In order to maintain the stability of the legal system of succession in China, the Part of Succession of the Civil Code adopts major basic systems and rules of the existing Succession Law. Although it is organized in the same structure of four chapters of ‘General Provisions’, ‘Statutory Succession’, ‘Testamentary Succession’, and ‘Disposition of the Estate’, it makes supplements and improvements in light of demands of economic and social development and refines and adjusts some provisions to make the regulation system of the Part of Succession more scientific and rigorous. First, it pays attention to its coordination with the Part of General Provisions and the other Parts of the Civil Code. For example, it deletes the relevant provisions on the statute of limitations and on the supplementary provisions to be consistent with the Part of General Provisions; it changes the expression of ‘joint property acquired by the spouses in their marriage life’ in the Succession Law into the expression of ‘the matrimonial property of husband and wife’ (article 1153) to be consistent with the Part of Marriage and Family. Second, it attaches importance to the logical arrangement of the provisions in the Part of Succession. For example, it brings forward to Chapter I (article 1124) a general provision on ‘acceptance or disclaimer of inheritance’ (article 25 of the Succession Law) in Chapter IV of ‘Disposition of the Estate’ in the Succession Law. It also brings forward the provision on ‘void wills (article 1143, which is article 22 of the Succession Law) to make Chapter III organized in the logical order of ‘general provisions on testamentary succession and legacy, forms of will, witnesses of a will, reservation of a necessary portion of the estate, revocation and alteration of a will, void wills, and testamentary succession or legacy with attached obligations’. Third, the use of precise legislative language makes the Part of Succession more scientific and rigorous. For example, ‘the cancellation of a will’ is changed into ‘revocation of a will’ (article 1142); ‘relevant organization or individual’ is changed into ‘interested person or relevant organization’ (article 1144); ‘fetal birth’ is changed into ‘fetal delivery’  (article 1155); so on and so forth.

2. To Highlight the Feature of Protection of Individual Right and to Strengthen the Protection of Civil Subjects’ Private Property and Free Will. — The first is to stress the protection of civil subjects’ private property. In order to better protect civil subjects’ private property, the Part of Succession further enlarges the scope of successors. The measures taken are as follows: adding children of brothers and sisters as the successors in subrogation (paragraph 2 of article 1128) to enlarge the scope of successors in subrogation and subsequently to reduce the probability that no successors inherit the estate so that the private property can be handed down to the relatives of the decedent; deleting the existing limited condition on the person ‘who depends on the support of the decedent and who can neither work nor has a source of income’ to have an appropriate portion of the estate (article 1131) to enlarge the scope of subjects who have the right of claim for the appropriate portion of the estate and to make better use of the private property of the decedent to guarantee the normal life of those depending on the support of the decedent.

The second is to fully respect the free will of the decedent. Another value idea of the Part of Succession is to fully respect the free will of the decedent to dispose of his estate, which is mainly manifested in the following aspects. First, it is the guarantee of the genuine intention of the testator. Such guarantee includes adding it as a statutory cause for the disqualification for the right of succession that the successor ‘forces or obstructs, by means of fraud or duress, the testator to make, alter, or revoke his will, where the circumstances are serious’ (item 5 of paragraph 1 of article 1125) to safeguard the genuine intention and autonomy of the testator; improving the limited conditions on the witnesses of the will with the supplementary provision that ‘other people without the capacity to witness the making of the will’ cannot be the witnesses of the will (article 1140) to guarantee the authenticity and the validity of the will. Second, it is the full respect to and the protection of the testator’s free will to dispose of his property. In order to pay more respect to the testator’s autonomy and to safeguard the freedom of the property owner to dispose of his property, the Part of Succession grants the testator the right to forgive (paragraph 2 of article 1125), supplements that whether the will is revoked should be determined in light of the acts of the testator (paragraph 2 of article 1142), nullifies the priority of the notarial will in terms of its validity, and establishes the principle that the last will has the priority in terms of its validity (paragraph 3 of article 1142). In addition, in terms of the order of successors who should pay the debts payable by the decedent, it is provided that the statutory successor should be the first to undertake the obligation to pay the debts (article 1163) to ensure that the estate can be kept by the testamentary successor or by the legatee to the greatest extent based on the decedent’s intent of disposition of the estate.

3. To Meet the Demands of the Development of the Times and the Society and to Fill in the Blanks in the Legislation. — The first is to define the scope of the estate in a scientific way. With the social development and progress, the types of property increase and cannot be covered as enumerated in the existing law. In order to fully protect the private property of individuals, the Part of Succession adopts the approach of ‘generalization and limitation’ and defines the estate as ‘the legal property owned by a natural person at the time of his death’ except for ‘the estate which cannot be inherited in accordance with the legal provisions or in light of its nature’ (article 1122), which enlarges the scope of the estate and leaves room for legislative adaption to the new types of property in the new era.

The second is to add more types of will. Scientific development makes the hardware equipment such as computer, printer, video camera, and mobile phone more and more common. As a result, printing and video are more convenient and feasible and have become a part of our life. Thus, the Part of Succession adds the form of printed will (article 1136) and the will in the form of video recording (article 1137) and provides detailed requirements for their validity to keep pace with social, scientific, and technological development in the new era.

The third is to establish the system of the estate administrator for the first time. The establishment of the system of the estate administrator is the most striking highlight in the Part of Succession. Since the reform and opening-up, the economy and the society have rapidly developed, the amount of wealth and inheritable estate of the people has increased obviously, more types of property have come into being, and claims involving administration and disposition of inheritable estate have become more diversified. In order to help proper administration and division of the estate and to better protect the rights and the interests of relevant persons, the Part of Succession formally establishes the system of the estate administrator in China by adding five detailed provisions on the ways to choose the estate administrator (articles 1145 and 1146), his duties (article 1147), the civil liability for failure to perform his duties (article 1148), and his right to payment (article 1149).

The fourth is to improve the system of legacy-support agreement. In recent years, the number of the aging population increases with an accelerating trend in China. In order to satisfy various demands of the elderly, to promote the development of the aging industry, and to better ensure people’s access to elderly care, the Part of Succession improves the system of legacy-support agreement to enlarge the scope of the supporter to a suitable extent by providing that a natural person may enter into a legacy-support agreement with ‘an organization or an individual rather than the successors’ (article 1158). As a result, the organization qualified for the conclusion of the legacy-support agreement is changed from ‘the organization under collective ownership’ to the legal entities or unincorporated organizations of all kinds rather than the successors.

The fifth is to clarify the use of the estate belonging to the state. Article 1160 limits the use of the state belonging to the state to the use of public welfare, which clarifies the public welfare purpose of the state’s acquisition of the estate which is left with neither a successor nor a legatee and meets the requirement of justification.

F. The Part of Tort Liability

There are 10 chapters and 95 articles in the Part of Tort Liability, which, based on the practical experience in the implementation of the Tort Liability Law, making necessary supplements and improvement to the Tort Liability Law in terms of the new situations of torts.

1. To Further Improve the System and the Rules and to Highlight the Remedy Law Attribute of the Part of Tort Liability. — From the perspective of the structure, the Part of Tort Liability deletes the provisions on the legislative basis, relations between civil liability and other liabilities, circumstances such as force majeure where civil liability can be relieved or reduced and the supplementary provisions in order to avoid repetition of the provisions in the Part of General Provisions. The first three chapters of the Tort Liability Law (General Provisions, Constitution of Liability and Ways of Bearing Liability, Exculpatory and Mitigating Circumstances) are combined into two chapters (General Provisions and Damages), which makes the structure more concise. The title of the second chapter is changed into ‘Damages’, which makes the damages law attribute of the Part of Tort Liability even more outstanding and further clarifies that a claim for damages is a claim for tort liability and is different from a claim for personality right or a claim for property right. This is also consistent with article 238 in the Part of Property Rights, which refines the provision, that where the infringement on the property right results in damage to the right holder, the right holder ‘may claim for damages’ by changing it into ‘may claim for damages in accordance with the law’. Meanwhile, the Part of Tort Liability further improves the rules of tort liability, specifying that ‘damage’ is an essential requirement for tort liability (articles 1165 and 1166), which emphasizes that whether it is the principle of liability for fault, the principle of presumption of fault, or the principle of liability without fault to be applied, the requirement of damage must be satisfied to constitute tort liability.

2. To Uphold the Core Socialist Values and to Safeguard the People’s Rights. — Due to the remedy law attribute of the Tort Liability Law, the Part of Tort Liability keeps it as its value aim and basic idea to better safeguard the people’s rights, which are mainly reflected in the following aspects:

The first is to enlarge the scope of protection against torts. Article 1164 deletes the enumeration of civil rights and interests in the Tort Liability Law and provides that ‘this Part adjusts the civil relationship arising from and out of the infringement on the civil rights and interests’, which avoids tedious and incomplete provisions and makes the scope of protection against tort covered by the provision in the Part of General Provisions on civil rights and other civil rights and interests. It actually enlarges the protection scope to include all civil rights and civil interests.

The second is to improve the rule of damages to enlarge and strengthen the protection of civil rights and legal interests. Firstly, it adds more circumstances where damages can be claimed for emotional distress to include the claim of damages for emotional distress against particular objects of personal significance in the property (paragraph 2 of article 1183). Secondly, it enlarges the scope of application of punitive damages to include the addition of punitive damages for infringement on intellectual property right (article 1185) and for damage to the environment or the ecological system (article 1232), which effectively strengthens the protection of intellectual property rights and ecological environment protection by increasing the cost of violation of law. 

3. To Clarify the Standards of Conduct and Adjudication and to Promote the Achievement of Fairness and Justice. — Compared with the Tort Liability Law, the Part of Tort Liability attaches more importance to the balance between the tortfeasor and the infringed, the actor and the victim, the interests of individuals and the social public interests, adjusts more precisely rights and duties of the parties by clarifying the specific standards of conduct and adjudication to guide the public to conduct civil activities in the right way, and promotes rational adjudication by judges in accordance with the law to achieve fairness and justice. 

The first is to improve the rule of contributory negligence. Article 1173 of the Part of Tort Liability improves the rule of the victim’s fault in article 26 of the Tort Liability Law by changing ‘damage’ into ‘the same damage’, deleting the word ‘also’, and adding ‘or aggravation’. Although the changes are quite small, they make the expression more rigorous and make that provision applicable to the circumstances where the infringed is either at fault for ‘aggravation of the damage’ or without fault, which reflects the fine balance weighed by the legislature between the parties in terms of their rights and obligations and the pursuance of fairness and justice.

The second is to add the victim’s assumption of risk and self-supporting act as the causes for exemption from liability. The civil subjects’ participation in the risky recreational and sports activities such as confrontational sports activities is the choice on their own initiative after their evaluation of the risk, and the normal risks resulted from which should be taken by themselves in principle. The establishment of the rule of risk assumption (article 1176) helps clarify the responsibility of the institutions like schools which organize the activities of this kind. The provision on the victim’s self-supporting act (article 1177) can add more means of remedy to be taken by the civil subjects and can protect their legal rights and interests to a greater extent. Meanwhile, in order to balance the parties’ rights and obligations, paragraph 2 of article 1177 explicitly provides that ‘where the victim takes improper measures and causes damage to others, he shall assume the tort liability.’

The third is to improve the expression of the provision on ‘shared liability’. The expression that ‘both of the parties may share the damage based on the actual situation’ is changed into the expression that ‘both of the parties may share the damage in accordance with the law’ (article 1186). It clarifies that such a provision is not a separate imputation principle and avoids the application of such a provision by the judge in an abusive way to settle disputes by means of compromise so as to achieve substantial fairness in adjudication in accordance with the law.

The fourth is to add more types of tort liability and to clearly determine on the assumption of liabilities. The examples are as follows: adding the liability of the guardian who entrusts his guardianship to others to clarify the allocation of liabilities between the said guardian and the trustee (article 1189); adding the provision on liability for tort and for compensation where a third party’s act causes damage to the labor service provider in the process of providing the labor service (paragraph 2 of article 1192); adding the provision on the tort liability under the contract for work (article 1193); improving the obligation of the manufacturer and the seller to recall the defective products and clarifying the sharing of the expenses (paragraph 2 of article 1206); in the Chapter of ‘Liability for Motor Vehicle Traffic Accident’, adding the provision on the allocation of liability under the circumstances where the traffic accident is caused by a vehicle affiliated to a certain institution (article 1211), by a vehicle driven by someone without the permission of the owner (article 1212), or by a non-commercial vehicle with free rider in it (article 1217); so on and so forth.

4. To Keep Close Pace with the Development of the Times and to Meet the Social Demands in the New Era. — The first is to adapt to the demands of the information society for development based on the information era and to improve and to strengthen the regulation on liability for tort on the internet. There are four provisions in the Part of Tort Liability (articles 1194-1197) on scientific regulation on liability for torts on the internet. For example, article 1195 improves the rule of notice, specifying the contents to be notified including ‘the prima facie evidence of the tort and the true identity of the right holder’; adds the provision that the network service provider shall forward the notice and take necessary measures in light of the prima facie evidence and the type of service, otherwise, he shall be jointly liable for aggravated damage; adds the provision that the right holder shall assume tort liability for damage to the network user or the network service provider due to his false notice. Article 1196 balances the parties’ rights and obligations and helps uphold the free expression on the internet by providing the rule of counter-notice to grant the right to the network user who has received the forwarded notice to submit ‘a statement of non-existence of tortious act’, and by providing that the network service provider shall forward the said statement and inform the network user of his right to ‘file a complaint with the relevant department or a lawsuit with the people’s court’ and ‘shall terminate in a timely manner the measures that have been taken’ where ‘it has not received the notice of complaint or lawsuit filed by the right holder’ in a reasonable period of time. Article 1197 improves the red-flag principle, changing ‘know’ into ‘know or should have known’, which adopts the objective standard to be easily applied in the trial and in the judgment of the court.

The second is to carry out the fundamental policies and strategies of constructing ecological civilization system, to implement ‘the green principle’ provided in the Part of General Provisions, and to establish and improve the system of tort liability for environmental pollution and ecological destruction. The Part of Tort Liability is not only the continuance and improvement of the provisions in the Tort Liability Law on environmental pollution, but also the response to the revision of article 64 of the Environmental Protection Law of 2014. It changes the title of the Chapter ‘Liability for Environmental Pollution’ into ‘Liability for Environmental Pollution and Ecological Destruction’, adds the provision on tort liability for ecological destruction (which is mainly embodied in articles 1234 and 1235), and clarifies the liability for restoration of the ecological environment, the scope of public interest litigation and damages for ecological environment destruction, and so on.

5. To Face Directly the Concerns of the Ordinary People and to Solve Effectively the Difficult Social Problems. — As the all-inclusive provision on the protection of civil rights and interests, the Part of Tort Liability makes definite regulations in light of the new situations and the new problems at present and takes into consideration the achievement of both public interests and social fairness and justice while strengthening the protection of private rights. For example, it explicitly provides the rule of free rider (article 1217) in terms of the public attention to and broad discussion of the free ride problem brought about by the case involving ride-hailing service provided by DiDi Chuxing; it sets out supplementary provision on the obligation of the medical personnel to make explanations to the patient (article 1219) and on the rules of the protection of patient’s privacy and personal information (article 1226); so on and so forth. Especially, in terms of the social concern and heated debate on article 87 of the Tort Liability Law aroused by cases in recent years, which involves an object thrown or falling from a building, it improves the provision on the tort liability for an object thrown or falling from a building (article 1254). In addition to the provision that ‘the user of the building who could have been the person causing such injury shall pay compensation’, it also stresses the use of integrated approaches to solving difficult social problems by setting out the safety guarantee obligation of the building manager such as the property management service provider and the duty of the public security organ.

It should be pointed out specially that, in order to make the Civil Law better play its important role in the state governance system in the new era, the specific laws of the Civil Code further expand and strengthen the institutional function of civil laws in comprehensive governance. For example, in addition to relevant provisions discussed above on strengthening the protection of private rights and the promotion of the development of market economy, important institutional arrangements are set out in terms of various potential natural and man-made disasters in the modern risky society. Particularly, since the outbreak of the COVID-19, the NPC Standing Committee pays great attention to it and carries out the spirits of the important speeches delivered by General Secretary Xi Jinping and implements the decisions and arrangements of the CPC Central Committee by sorting out the relevant civil laws and regulations on epidemics and by revising and improving them particularly in light of the work of compiling the Civil Code. For example, the right to require the termination of the danger or the removing of the impediment to prevent the occurrence of risks in advance is granted (article 286) to enlarge the scope of the safety guarantee obligation in order to strengthen the risk prevention (such as paragraph 2 of article 1254). The Part of Property Rights adds ‘the epidemic control’ as the cause for the expropriation of real property or personal property of individuals (article 245) and provides that ‘the property management service provider or other managers shall implement the emergency handling measures or other management measures taken by the government in accordance with the law’ and requires the cooperation of the owners in accordance with the law (paragraph 2 of article 285 and paragraph 1 of article 286). The Part of Contracts improves the rule of state order contract and provides that where the state assigns orders or mandatory tasks to meet the demands for rescue and relief or epidemic prevention and control, or to meet other demands, the relevant civil subjects shall conclude the order contracts in accordance with rights and obligations provided in the relevant laws and administrative regulations (paragraph 1 of article 494) so that the capacity of handling high risks can be improved. It adopts and improves the rule of force majeure (article 590) to help the proper settlement of civil disputes over the execution of the contract as a result of risks. In light of the work of prevention and control of COVID-19, it provides that ‘where the guardian is unable to perform his obligation as a guardian under emergency circumstances and the person under guardianship lives unattended, the neighbourhood committee, the villagers’ committee, or the civil affairs departments shall make temporary and necessary arrangements for the life of the person under guardianship’ (paragraph 4 of article 34) to strengthen the connection between civil liability and social insurance and relief in order to provide comprehensive relief to the victim of risks.

CONCLUSION

The compilation of the Civil Code took six years. It demonstrates the political determination and resolution of the top policy-makers in China, generalizes the experience of civil legislation and judicial practice since the founding of New China, especially since the reform and opening-up, reflects the people’s will and response to the social concerns, gathers the painstaking efforts and expectations of civil jurists of several generations, and commences the new era of civil right protection in China. From the introduction of the highlights and the innovations in the specific laws, it can be seen that the promulgated Civil Code not only revises, improves, and integrates comprehensively the existing civil laws, but also positively meets the new demands of the people for the rule of law and embodies the spirits of the times. ‘Importance is attached to civil law in a prosperous age’. This Code is people-centred, keeps pace with the times, is based on China itself, and takes the whole world into consideration. We believe that the promulgation of such an important Code will certainly protect the legal rights and interests of the people in a better and more comprehensive way, safeguard and guide the orderly development of the society and the economy in China, continuously promote the modernization of China’s system and capacity for governance, and make our country more prosperous and stronger.



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