A Critical Assessment of the Chinese Civil Code

A Critical Assessment of the Chinese Civil Code Presented by: Professor Lei Chen (Durham Law School) Purposes 1. It provides the reasons for and against the introduction of the CCC in China. 2. Some notable rule changes have been highlighted to facilitate an a critical evaluation of the salient features of the CCC. 3. What happens subsequent to the enactment of the CCC? 4. Two caveats: a. In the interest of time, the overview will not cover each and every aspects of CCC, a piece of mega legislation. b. Any general statement on the CCC solely concentrating on the paper rules would fail to capture a complex reality without paying regard to the underlying social, economic, and political contingencies and judicial practice. Two Salient Features  The civil law tradition underpins Chinese private law; When drafting a civil code, → Chinese lawmakers are becoming open-minded; borrowing both from civil law, common countries' and mixed jurisdictions' legislative experience. But Chinese private law with remain congruent with the continental civilian law families.  Compilation v codification  Source: Lei, Chen. "The historical development of the Civil Law tradition in China: a private law perspective." Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/The Legal History Review 78.1-2 (2010): 159-181. Reasons For Its Introduction 1. At this transitional period, how the state, users, and right-holders use the legislation to ensure a smooth transition from fluid social norms or fragmented regulatory rules to a streamlined, uniform, law-oriented legal system. ---law and development theory 2. The codification of Chinese civil law will facilitate private sectors' and foreign investors' mobility by increasing their legal certainty and predictability. --Growing middle class 3. The CCC brings about a tangible benefit-making locating rules easier by tidying up all the exiting civil law rules in a comprehensive manner. Reasons Against Its Introduction 1. Does it make sense to introduce a civil code in the age of de-codification? once the Civil Code is enacted, its contained rules will become fixed and very difficult or costly to change. This concern is what I call a "fossilization" issue. 2. The quality of the civil Code would be questionable if it was made in a rush due to a political agenda. Notable Rule Changes: Contract  Contract Book contains 526 articles (Article 463-Article 988), which occupies 41.7% of the total 1260 articles, thus forming the most sizable Book of the Civil Code.  There is no general part governing the law of obligations in the CCC. The third part of the Contract Book is termed a quasi-contract, referred explicitly to unjust enrichment and Maggotorium gestio.  the defaulting party's right to apply to the court for contract termination in cases where the breach is not willful, and continuing performance would cause obvious unfairness to the defaulting party. Property - Comparing the Civil Code with the PL, the voting procedure for condominium owners to decide on matters concerning common property has changed. - While the right of contractual land management over the farmland in rural areas has been defined as a property right - usufructuary right by the PL, the provisions in the CC are still nebulous about the legal nature of the land management right carved out of the right of contractual land management. Tort  The CC has established the "self-contained risk" rule. a person volunteers to participate in a recreational or sports activity that carries a specific risk.  It provides the "self-help remedy" rule. Under such circumstances, the victim may take reasonable measures such as distraining the property of the tortfeasor to the extent necessary to protect the victim but shall immediately require the state organ to take action.  It provides a specific liability rule in helping allocate the risks when a falling object causes an injury out of a high-rise building. Personality Rights Book - Its standalone book of personality rights. Enacting a separate book on personality is a unique arrangement that strikingly differs from the European approach. - This is perhaps a defining feature of the Chinese CC, which provides adequate legal the private law sphere. - Nonetheless, it remains interesting to observe whether the existing tort remedies to prevent personality rights violations and to assess the impact which digital technology to injuries of personality rights Some Evaluations 1. State Commitment and Political Will: the most crucial factor; 2. Systematization and Coherence: Combination of civil and commercial laws; 3. Stasis and Change Source: Lei Chen (et al)The Civil Code of the People's Republic of China Going Forward  Even if the wording and phrasing of the pre-existing legal institutions stay the same, construed and applied differently in a new context. In other words, under Chinese law judiciary will play a far-reaching role in fleshing out the concrete legal tests in case l  The SPC has taken the lead to issue the judicial interpretations as a "source of law" the CCC. For example, the first batch of the SPC Interpretations concerning the books marriage and family, guarantee and security interests, and succession have been issue contract and tort are still under discussions...  SPC Interpretation on the Temporal Effects of the Application of the Civil Code of the Republic of China