Crossing The River By Feeling The Stones Book Review

Book Review: Crossing The River By Feeling The Stones Presented by: Professor Jiang Ping Overview - Piecemeal and incremental approach chosen by Chinese legislator to build and regulate a civil law for China of reform and opening-up - STARTING POINT: CIVIL LAW IS PUBLIC LAW - From public to private legal dimension: 1. 1987 General Principles of Civil Law citizens (natural persons) 2. 1999 Contract Law only "natural persons" Timeline 1. 1980 Marriage Law: Book X: Marriage and Family: Chapter I - Chapter IV 2. 1985 Inheritance Law: Book XI: Inheritance 3. 1991 Adoption Law: Book X: Marriage and Family Chapter V 4. 2007 Real Right Law: Book II: Real Right 5. 2009 Tort Liability Law: Book XII: Tort Liability These laws have been now abrogated and merged into the special parts of the Civil Code An Example: Land Ownership Rules  Principle of public ownership  System of land use rights when was made divisible from land ownership thus making possible for the use rights to be privatized  In 1988 Amendment of Article 10 of the Constitution: "No organization or individual may appropriate, buy, sell or otherwise engage in the transfer of land by unlawful means. The right to the use of land may be transferred according to law." Crossing The River By Feeling The Stones  In the case of rural land, which is under a collective ownership regime, a two-tier land tenure system was first tested in some rural areas and then put in place. In this system, ownership rights were retained by the village collective, whereas the use rights were granted to households  However, in order to secure collective farmers' land use rights attached to the collective membership, several restrictions were imposed on the transferability of these use rights, which were limited to small scale intra village transfers  A tripartite rights system separates the ownership rights, contract rights, and management right of the land  The latter becomes freely transferable to external parties, including external companies, such as agribusiness and tourism companies  This tripartite rights system is now regulated in the Civil Code Art. 339  The evolution of the land ownership rules  The introduction of land use rights when were made divisible from land ownership  The splitting of the contract rights into two separate use rights, which, after having being locally tested, entered in the Civil Code  CHINESE exceptions to the classic modern civilian concept of the compact form of ownership which has been imported in China  They have been introduced and progressively reformed responding to legal, economic and social needs, they have first been tested and finally landed into the Civil Code Relations Of Chinese Law With Foreign Legal Models  Legal transplants  German model for civil code  'German' Scholars in China:  Liang Huixing, Chinese Academy of Social Sciences  Sun Xianzhong, CASS  Li Yongjun, China University of Political Science and Law  Zhu Qingyu, Nanjing University  Chinese scholars challenging the German paradigm  Wang Liming, Renmin University of China  Yang Lixin, RUC  Wang Yi, RUC  Cui Jianyuan, Tsinghua University We Should Definitely Not Dance In The Cage Of Theories Of Foreign Scholars  Influence of German Civil Code 1. Code structure based on general-special parts combination, e.g., zongze and fenze 2. Some paradigmatic elements of the German model, first of all, the category of the juristic act (Rechtsgeschäft)  Special parts follow Chinese path 1. Book III: Contract 2. Book IV: Personality Rights (A new book greatly supported by Prof. Wang Liming) 3. Book VII: Tort Liability Borrowing As A Selective Activity  German model still has a legitimation role based on the prestige of the model, but it is only a part of a bundle of borrowed traits and original traits which have been mixed up, and even twisted around, producing a different model  Common law (e.g., punitive damages, good Samaritan immunity clause, purchase money security interest)  Chinese characteristics (e.g., classification of legal persons) From Legislation Theory To Interpretation Theory - Work with rules, legal concepts, law taxonomies (e.g., if a plurality of ownership situations exists, analysis of property rights requires intellectual instruments able to capture the complexity of legal arrangements) - Work with catch-all principles and standards