Page 6 - 2021 Policy Watch

Policy Watch: A Milestone in Legal Development: China Promulgates a Civil Code
While China had codes of law from the time of Qin dy-
nasty, 221 BCE, until 1911 CE, but this was not a civil
code.2 Yet modern China did not consider any of the
traditional legal practices when developing a civil code,
despite the outstanding success of the traditional legal
system. In essence, China adapted a contemporary ver-
sion of the Roman Civil Code, as modified by specific
characteristics of contemporary Chinese law. The con-
cept of a civil code originates from ancient Roman law,
where the Emperor Justinian enacted the Corpus Juris
Civilis, on or about 529 CE, which included the Insti-
tutes, Digest, Codex and Novels. The Corpus Juris Civilis
essentially deals with private law about persons, things
and actions. The Institutes particularly influenced the
categories of modern legal thought in Europe. For ex-
ample in France, in 1803-4 by enactment of the Code
Civil. As the Institutes started book one, part three with
the laws regarding persons, so the Civil Code of China,
book one, chapter two commences with the law about
persons. The Civil Code of Mongolia, similar to Euro-
pean codes, chapter three refers to citizens and chapter
four about juristic persons.
1. Statutory Law
While many developing states, such as Mongolia in
2002, adapted a comprehensive civil code, based on
borrowing large part of other nation?? code, China pro-
ceeded in its own way by enacting piecemeal legislation,
while working on a civil code, which went through
many unsuccessful drafts. For example, in 1979, the
2 For a very long time, foreigners thought that China did not have
civil law and civil litigation during the traditional period. In fact,
there was substantial civil law and civil litigation in China during
the traditional period. See David C. Buxbaum, Some Aspects of Civil
Procedure and Practice at the Trial Level in Tanshui and Hsinchu from
1789 to 1895, Volume XXX Journal of Asian Studies, p. 255 (1971).
This article analyzes a Qing dynasty magistrate?? archive and found
that about one third of the cases handled by this magistrate were civil
proceedings. This article has been called a seminal article and has been
reprinted in China. Additionally, because of certain punishments ad-
ministered by the traditional courts, such as the cangue, foreign persons ç¬??ä¸??è§??ï¼??æ°??????????´¢äº§ä???¾µ
assume that traditional Chinese law was cruel and unsophisticated.
Thanks to the outstanding scholarship of Professor Dai Yanhui of Tai-
wan University; and most importantly the work of Professor Zhang
Jinfan of Zhengfa University and his many students, we now know the
traditional Chinese legal system was among the most sophisticated and
clearly the most enduring legal system in world history.
6
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